C v Beaumont
[2000] TASSC 9
•25 February 2000
[2000] TASSC 9
CITATION: C v Beaumont [2000] TASSC 9
PARTIES: C
v
BEAUMONT, Heather
W
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 3/2000
DELIVERED ON: 25 February 2000
DELIVERED AT: Launceston
HEARING DATE/S: 23 February 2000
JUDGMENT OF: Crawford J
CATCHWORDS:
Magistrates - Jurisdiction and procedure generally - Procedure - Orders and convictions - Orders generally - Children's Court - Order recorded on record of proceedings sheet and on typed order signed by magistrate - No jurisdiction to make such an order - Not in accord with magistrate's oral statement of the order - Magistrate's oral statement of order unclear.
Child Protection Act 1974 (Tas), ss10(1)(2), 11(1).
Child Welfare Act 1960, s39(1).
Aust Dig Magistrates [129]
REPRESENTATION:
Counsel:
Applicant: B H Crawford
First Respondent: W G Tucker
Second Respondent: A Trezise
Solicitors:
Applicant: Crawford & Crawford
First Respondent: Grant Tucker
Second Respondent: Trezise Partners
Judgment ID Number: [2000] TASSC 9
Number of paragraphs: 17
Serial No 9/2000
File No LCA 3/2000
C v HEATHER BEAUMONT and W
REASONS FOR JUDGMENT CRAWFORD J
25 February 2000
On 11 November 1999 an application under the Child Protection Act 1974, s10(1), came before a children's court, constituted by a magistrate in Hobart. It concerned a child, T, aged two years. Each parent of the child was represented by a legal practitioner. The father, who is the second respondent here, did not oppose the application but the mother did oppose it. The learned magistrate made an order pursuant to s10(1) that the child be taken to a place of safety, namely the Royal Hobart Hospital, for a period of 30 days and be kept in that or some other place of safety as determined by the Child Protection Board for that period. The court's file was then transferred to Launceston.
Section 10(1) provides that where it appears to a magistrate on an application by the Board that a child may have suffered maltreatment, or that there may be a substantial risk that a child will suffer maltreatment, the magistrate may, if he or she considers it desirable in the interests of the child so to do, by order direct that the child be taken to such place of safety as may be specified in the order and be kept in that or some other place of safety for such period as may be specified in the order, not extending beyond 30 days from the making of the order. Subsection (2) provides that on an application by the Board, a magistrate may, once only, by a further order, extend the period of such a child protection order for a further period, not exceeding 30 days, if the magistrate is satisfied that it is in the interests of the child so to do.
On 6 December 1999 the first respondent, being a person authorised by the Board to do so, made an application in writing pursuant to s10(2). The application came before a children's court, constituted by the Chief Magistrate, in Launceston on 8 December 1999. Legal practitioners appeared respectively for the Board, the father and the mother. The learned magistrate made an order extending the period of the child protection order for a further period of 30 days. It is to be noted that there is no provision in the Child Protection Act 1974 authorising an extension of the operation of the child protection order for a period beyond that so extended, whether on later application or otherwise.
However, the Child Protection Act 1974, s11(1), provides that where, on an application made by the Board in respect of a child who is subject to a child protection order, a magistrate is satisfied that the child has suffered maltreatment, or that there is a substantial risk that the child will suffer maltreatment, the magistrate may, in addition to, or in lieu of, exercising any powers under the Act, exercise in relation to that child the like powers as if the magistrate was a children's court and the child had been brought before the magistrate under the Child Welfare Act 1960 and found to be a neglected child within the meaning of that Act. By an application dated 4 January 2000 and filed on 6 January 2000 the first respondent, as a person authorised by the Board, applied to a children's court under the Child Protection Act 1974, s11(1), in respect of the child, who at that time was still subject to the child protection order which had been extended on 8 December 1999. The application stated that it sought an exercise of the powers of the court under the Child Welfare Act 1960 as if the child was neglected within the meaning of that Act and the application stated that "Order sought is a 3 month Interim Order". Included in the powers of a children's court under the Child Welfare Act 1960, s34(1), with respect to a child brought before it and who is considered by the court to be a neglected child, are powers to make an order declaring the child to be a ward of the State or to make a supervision order in respect of the child. However, by s39(1) it is provided that if a children's court is not in a position to decide whether any and, if so, what, order ought to be made under s34 in respect of a child, it may make an interim order authorising the child to be detained in custody in the charge of the Director for Community Welfare and, subject to s39, that order remains in force for such period as the court, on the making thereof, may determine, and for such further period as it may be extended under the section. By subs(3) it is provided that an interim order shall not remain in force for a period longer than three months from the date on which it was made.
In support of the application which was filed on 6 January 2000 there was filed a lengthy affidavit by Bernadette Louise Lyall, a child protection officer. It explained much of the history of the case and of concerns that the child may have suffered maltreatment at the hands of its mother and that it might be at risk of maltreatment from the mother in the future. There is no need to explain further the contents of that affidavit.
The application came before a children's court, once again constituted by the Chief Magistrate, on 10 January 2000. Mr Tucker appeared as counsel for the first respondent. Miss Trezise was counsel for the father and Mr Briffa counsel for the mother. The hearing was recorded and a transcript of it has been supplied to me. It is sufficiently short for its full text to be set out in these reasons:
"HIS WORSHIP: Yes Mr Tucker.
MR TUCKER: Thank you your Worship, I appear on behalf of the Department this afternoon. You have before you an application for a three month interim order and in support thereof is an Affidavit of Bernadette Lyall. I spoken to my learned friends, Ms Trezise who appears for the father and Mr Briffa who appears for the mother and apparently consent is given to the three month interim order and a return date to 7 March at 2.15 for mention.
HIS WORSHIP: Is that the situation?
MS TREZISE: Yes I appear for the father and he consents to the proposed three month order.
HIS WORSHIP: Thank you.
MR BRIFFA: I appear for the mother and that is by consent your Worship.
HIS WORSHIP: Thank you. I make that order."
Because of the provisions of the Child Protection Act 1974, s11(1), the learned magistrate was not empowered to make an interim order under the Child Welfare Act 1960, s39(1), by consent. He needed to be satisfied that the child had suffered maltreatment or that there was a substantial risk that the child would suffer maltreatment. The learned magistrate did not express his satisfaction in that regard. It is not apparent from the transcript whether he had read or considered the contents of the affidavit of Bernadette Louise Lyall or whether he addressed his mind to the statutory criteria of s11(1). It was therefore my suggestion, with which counsel agreed, when the motion to review was first mentioned before me, that the learned magistrate be invited to make and file in this Court an affidavit setting forth the grounds of the order he had made and any facts that his Worship considered had a material bearing on the questions at issue. The Justices Act 1959, s112(1), provided the learned magistrate with the authority he needed to make and file such an affidavit. However, he refused to provide it and the hearing of the motion to review proceeded without it.
The record of the proceedings before the children's court on 10 January 2000 was presumably made by the Chief Magistrate's clerk. The record was made by hand and at some time it was altered by another hand. I presume that the alterations were made either by or with the authority or knowledge of the Chief Magistrate because he signed an order in identical terms. As altered the record is in the following terms:
"Upon hearing an application made by the CPAB in respect of T … a child not having apparently attained the age of 17 years namely approx 2½. I hereby make an interim order that the said child be kept in a place of safety namely Royal Hobart Hospital for 3 months. Matter adjourned to 7th March 2000 at 2.15pm. AGS".
A formal typed order which was signed by the Chief Magistrate and which is dated 10 January 2000, the day of the hearing before him, is in the following terms:
"BEFORE: A G SHOTT, ESQ., CHIEF MAGISTRATE
UPON AN APPLICATION by the Northern Assessment Committee of Launceston pursuant to S11 Child Protection Act 1974 in respect of T … a child not having apparently attained the age of 17 years namely approximately 2½ years I HEREBY make an interim order that the said child be kept in a place of safety, namely Royal Hobart Hospital, for 3 months.
Adjourned to 7th March, 2000 at 2.15pm.
DATED THE 10TH DAY OF JANUARY, 2000
(Signature)
A G SHOTT, ESQ.,
CHIEF MAGISTRATE".
The applicant has expressed her notice to review as seeking to review an order made by the Chief Magistrate "that T …, a child not having apparently attained the age of 17 years, namely approximately 2 ½ years was to be made the subject of an interim order that the said child be kept in a place of safety, namely Royal Hobart Hospital for three months". So expressed, the motion attacks the order in the form in which it appears on the record of proceedings sheet and on the formal typed order signed by the magistrate.
By the first ground of her motion the applicant seeks to argue that "the order is null and void as being outside the jurisdiction of the Children's Court". The learned magistrate clearly had no jurisdiction to make the order which was recorded on the record of proceedings sheet and the typed order. An order that the child be kept in a place of safety is an order in the nature of a child protection order made under the Child Protection Act 1974, s10(1). The learned magistrate had no jurisdiction to make such an order because it had been made before, on 11 November 1999, and it had been extended on 8 December 1999. There was no power to make or extend it again. Child Protection Act 1974, s10(2). Further, the power to make a child protection order under s10(1) and (2) only permitted the making of it for a period not exceeding 30 days and so an order that it operate for three months was also without authority. It should be noted in any event that the applicant had not applied for an order of the kind recorded.
If the learned magistrate intended to make an interim order under the Child Welfare Act 1960, s39(1), effective for three months, the appropriate order, following the wording of the subsection, would have been "T … be detained in custody in the charge of the Director for Community Welfare for three months". There was no expression by the learned magistrate of an order in terms resembling that.
A children's court is a court of record. The learned magistrate was required by law to take, or cause to be taken, a record of his decision and order in the proceedings. Child Welfare Act 1960, s13(6) and Justices Act 1959, s50A(1)(c). The provisions of the Justices Act 1959 applied to a children's court as a result of those sections. I hold that the record of proceedings or the typed order which was signed by the learned magistrate, or both, constitute the formal record of what was ordered. The statement by the learned magistrate that he made "that order", as appears from the transcript of the hearing, is insufficient to set aside the presumption, which must apply, that the recorded order was the one made by the learned magistrate, and the one he intended to make, unless and until the recorded order is either set aside or amended.
Counsel for the first respondent and the father of the child submitted that I should exercise the powers given by the Justices Act 1959, s110(b) and (f). See also s31(5). They empower this Court, on the hearing of a motion to review, to amend the order reviewed and to amend or cause to be amended any defect or error in the proceedings below. It was therefore their submission that I should amend the recorded order into terms appropriate for an interim order under the Child Welfare Act 1960, s39(1). I would be content to do that if I was satisfied that the learned magistrate intended to make such an order. But the evidence does not disclose that. In fact, to the contrary, it suggests that the learned magistrate intended what was recorded and then signed by him. Further, before the learned magistrate could make an interim order under the Child Welfare Act 1960, s39(1), he first needed to be satisfied, under the Child Protection Act 1974, s11(1), that "the child had suffered maltreatment, or that there was a substantial risk that the child would suffer maltreatment", and there is no evidence that the learned magistrate was satisfied of either of those matters. It is possible, I do not know, that the learned magistrate merely made the order because all interested adults were content that he do so. Since the hearing in the children's court the situation in that regard has changed. The child's mother now wishes to oppose such an order. Clearly there has been no hearing of the application on the merits. It would be inappropriate for me to make an interim order under the Child Welfare Act 1960, s39(1), or to amend the record of the order made in the court below to conform with the appropriate terms for such an order, without being confident that the learned magistrate was satisfied that the child had suffered maltreatment, or that there was a substantial risk that the child would suffer maltreatment, or without me being so satisfied. Not knowing what the magistrate's state of satisfaction was and not having dealt with the case on its merits, it is inappropriate therefore that I should make an order of the nature sought by the first respondent and the father.
I am therefore of the opinion that I have no choice but to make an order setting aside the order made by the learned magistrate. The first respondent's application will be remitted for rehearing by the Chief Magistrate or any other magistrate. Presently it is listed for hearing before the Chief Magistrate on 7 March. Until then the provisions of the Child Protection Act 1974, s10(2A) will operate and the protection order made on 8 December 1999 will continue to have effect until the conclusion of the proceedings, notwithstanding the earlier expiry of the period of the order.
I briefly mention the other grounds of the motion to review. The second ground complains that the learned magistrate erred in law because he did not determine whether the child had suffered maltreatment or that there was a substantial risk of maltreatment, as required by the Child Protection Act 1974, s11(1), before the interim order was made. It is unnecessary for me to determine the ground. However, I note that there is no information before me which establishes positively that the learned magistrate was or was not so satisfied. I had hoped that the learned magistrate would provide his affidavit clarifying the issue but his Worship declined to do so and there is therefore no evidence, one way or the other, concerning his state of satisfaction. I foreshadowed that I might determine ground 2 in this way and the applicant then applied for and obtained an order amending the notice to review by adding a third ground asserting that the learned magistrate erred in law when he failed to state that he was so satisfied. Such a ground raises the duty of a judicial officer to give reasons for the making of orders. Orders which are truly made by consent do not need the expression of reasons. This was not a case, however, for the making of the order by consent. The learned magistrate had a duty to look after the welfare and interests of the child and notwithstanding that the first respondent and the parents expressed their contentment that an order should be made, it was nevertheless incumbent on the learned magistrate to exercise his own judgment upon the issue. There is a large body of case law establishing that judicial officers should give reasons for their decisions. Pettitt v Dunkley [1971] 1 NSWLR 376 immediately comes to mind. There are many others, including judgments of members of this Court. It is a matter for argument, and the point was not argued before me, whether the duty to give reasons applies in the circumstances of a case such as this, where all persons who appeared before the court expressed their contentment with the proposed order. In view of the course I propose to take so far as concerns the motion, it is unnecessary for me to hear further argument or to determine grounds 2 and 3.
For the reasons I have expressed I will make the following orders:
1That the order made in a children's court at Launceston on 10 January 2000 whereby it was ordered that T … be kept in a place of safety, namely Royal Hobart Hospital for three months, is set aside.
2That the first respondent's application to a children's court is remitted for rehearing.
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