Director-General, Dept of Families, Youth and Community Care v Hobbs and Hobbs

[1996] QCA 484

IN THE COURT OF APPEAL	[1996] QCA 484
SUPREME COURT OF QUEENSLAND

Appeal No. 7578 of 1996

Brisbane

Before Fitzgerald P.
Davies J.A.
Dowsett J.

[Director-General, Dept. of Families, Youth and Community Care v. Hobbs & anor.]

BETWEEN:

THE DIRECTOR-GENERAL, DEPARTMENT OF FAMILIES, YOUTH AND COMMUNITY CARE

Appellant

AND:

BRETT HOBBS and JODIE HOBBS

Respondents

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 29 November 1996

On 19 November 1996, the Court allowed an appeal pursuant to s. 52A of the Children’s Services Act

1965 from a decision of the Childrens Court at Ipswich on 26 July 1996. Under sub-s. 49(1) of the

Act, an officer in the Department of the appellant, the Director-General, Department of Families, Youth

and Community Care, had applied to the Childrens Court, constituted by a magistrate, to admit a child,

Ian Hobbs, born on 7 April 1995, into the appellant’s care and protection. The magistrate instead

ordered that the appellant have protective supervision over and in relation to the child, and continued

as follows:

“... pursuant to section 56(1)(a) of the Act I specify as part of that order the following matters and objects in relation to which the Director is to exercise his supervision and further I give the following directions. ...

1. The child is to remain in the full-time care of his foster mother, Mrs Ayers, until he and both his parents, Mr Brett Hobbs and Mrs Jodie Hobbs, the respondents to this application, can be placed together in the department's supervised residential facility known as Silky Oaks. Such placement is to be effected as soon as is practicable and hopefully no later than Wednesday, 31 July 1996.

2. Upon such placement at Silky Oaks, the child and his parents are to live in at

that facility both day and night for a continuous period of three calendar months subject
to the exceptions mentioned in 5 and 6 below.

3. Whilst the child and his parents are living in at Silky Oaks, the child's parents are to be given whatever assistance and/or training is deemed appropriate by you or your authorised delegate to further and better the parenting skills of both parents amongst other things.

4. During the period of the placement of the child and the parents at Silky Oaks and thereafter until any written release from this order is made by you under section 54 of the Act, the parents' behaviour towards and care of the child is to be closely supervised, monitored and reported upon.

5. Commencing the second week of their placement at Silky Oaks the parents are free to take the child away with them from the supervised residential facility between the hours of 9 a.m. and 4 p.m. each and every Wednesday or any other weekday by mutual consent.

6. Commencing on the weekend of the third week of their placement at Silky Oaks and continuing every weekend thereafter whilst in such placement, the parents are free to leave Silky Oaks with the child at midday each Saturday and return with him at midday on the following day subject to the parents notifying the person in charge of Silky Oaks on each occasion the address of the residents where they and the child will spend the night.

7. Upon the completion of three calendar months at Silky Oaks subject to the above conditions the parents and the child will be free to return on a full-time basis to their residence at Inala. Upon such return this protective supervision order shall continue so far as it then applies until such time as you release the child from operation of such order pursuant to section 54 of the Act.”

The Court set those orders aside, and referred the matter back to the Childrens Court for hearing and

determination according to law, with a direction that the Childrens Court receive further evidence for

that purpose. It is unnecessary to record the terms of an undertaking given by the respondents to this

Court, or the terms of their “understanding” of the appellant’s attitude pending the determination of the matter by the Childrens Court.

It was not in dispute that the child was in need of care and protection within the meaning of s. 46 of the

Children’s Service Act. Nonetheless, the magistrate could only order that the child be admitted to the

appellant’s care and protection if “not satisfied that such care and protection can be secured to such

child by any other order it may make”: sub-s. 52(1)(b).[1] The other possible orders included an order

[1]             If an order is made that a child be admitted to the care and protection of the appellant, guardianship of the child passes to, and, while the order continues in force, vests in the appellant: s. 55. Rights of guardianship are not affected by an order that the appellant have protective supervision over and in relation to a child: s. 59. In Taylor v. L; ex p. L [1988] 1 Qd.R. 706, Thomas J., with whom Derrington J. agreed, said at p. 711:

that the appellant “... have protective supervision over and in relation to [the] child”: sub-s. 49(4)(a)(ii).

The magistrate was required to “determine the matter in the manner which appears ... to be in the best

interests of the child ...”: sub-s. 52(2).[2] When an order is made that the appellant have protective

[2]             cf. s. 88.

supervision over and in relation to a child, the court making the order must, in the order, “specify the

matters and objects in relation to which the director is to exercise ... supervision”: sub-s. 56(1)(a). Rule

30 of the Childrens Court Rules provides:

“30. Matters and objects for supervision. For the purposes of the provisions of section 56 ... of the Act, the matters and objects in relation to which the Director is to exercise his supervision and which the Court shall or may as the case may be specify in its order may include all or any of the matters and objects set out hereunder or any other matter and object which to the Court appears necessary or desirable:-

(1)	Amusements, recreation or other similar activities;
(2)	Medical and dental examination and treatment;
(3)	Employment;
(4)	Moral and religious training;
(5)	Friends and associates;
(6)	Absences from home or place of abode.”

It is obvious that the orders and directions numbered 1 to 7 were fundamental to the magistrate’s

decision that it was unnecessary to admit the child to the appellant’s care and protection, and that an

order that the child be admitted to the appellant’s protective supervision was adequate and appropriate.

However, the orders and directions in question involved fundamental errors of both fact and law. As

to the former, it is sufficient to note that the male respondent cannot reside at the Silky Oaks residential

facility since male residents are not permitted.

The appellant submitted that the magistrate, in making an order that the appellant have protective

supervision over and in relation to the child, had no power “to divest [the respondents] of”, or make

orders which affected, the guardianship or custody of the child, and that that was the effect of the orders

and directions numbered 1 to 7. It was further submitted that “[g]iven the requirement for further

applications to the Court by reasons of the objects and matters and directions made by the Learned

Magistrate the care and protection of the child is not secured as required by Section 52(2) of the Act

and are not in the best interests of the child.”

The respondents’ answers were that it was not essential that an order that the appellant have protective

supervision over and in relation to a child “invest immediate custody of [the] child to the parents”, that

the magistrate’s orders and directions 1 to 7 came “within the ambit of section 56(1) and Rule 30

Children’s Court Rules” and that the Act provides for “[f]lexibility within a protective supervision order”;

“Orders made by the Court pursuant to section 56 ... may not finally conclude care and protection

issues related to a child: Sections 53 and 54", and “... the Act contemplates that Orders made by the Children’s Court shall be supported and extended by the Director without the Director or the parties

making further application to the Court: Section 56(2)”. Further submissions were made by the

respondents that:

“24.	The validity and operation of the order and directions made by the Childrens Court on 26th July 1996 are enforceable by operation of sections 51, 53, 56(1)(b) and 56(3) of the Act.
25.	The validity and operation of the orders made are further supported by the Act containing provisions for the Respondents to be compelled to comply with the directions of the Director by sections 51, 56(1)(b) and 56(3) of the Act.”

The rival submissions to which reference has been made suggest a complexity which cannot be found

in the legislative scheme. Sub-section 56(1) is concerned only to have a court which makes a protective

supervision order over and in relation to a child “specify the matters ... in relation to which the

[appellant] is to exercise ... supervision”, and the “objects” to which the supervision in respect of such

matters is directed. The orders and directions numbered 1 to 7 went much further, and plainly were not

authorised by the sub-section. They were accordingly beyond power.

Accordingly, as stated above, the Court allowed the appeal, set aside the orders made by the

magistrate, and referred the matter back for hearing and determination according to law.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 7578 of 1996

Brisbane

[Director-General, Dept. of Families, Youth and Community Care v. Hobbs & anor.]

BETWEEN:

THE DIRECTOR-GENERAL, DEPARTMENT OF FAMILIES, YOUTH AND COMMUNITY CARE

Appellant

AND:

BRETT HOBBS and JODIE HOBBS

Respondents

Fitzgerald P.
Davies J.A.

Dowsett J.

Orders made 19 November 1996

Reasons for Judgment delivered 29 November 1996

Judgment of the Court

UPON THE RESPONDENTS’ UNDERTAKING NOT TO REMOVE THE CHILD, IAN ALAN HOBBS, FROM ANY PLACEMENT IN WHICH THE APPELLANT PLACES THE CHILD WITHOUT THE CONSENT OF THE APPELLANT, SUCH UNDERTAKING TO CONTINUE UNTIL RELEASED BY COURT ORDER, THE COURT ORDERED AS FOLLOWS:

1.          APPEAL ALLOWED.

2.          ORDERS MADE IN THE CHILDRENS COURT ON 26 JULY 1996 ARE SET ASIDE.

3.          THE MATTER IS REMITTED TO THE CHILDRENS COURT FOR HEARING AND DETERMINATION ACCORDING TO LAW, WITH A DIRECTION THAT THE CHILDRENS COURT RECEIVE ANY FURTHER EVIDENCE NECESSARY FOR THAT PURPOSE.

CATCHWORDS:	CIVIL APPEAL - Childrens Court below ordered the appellant have protective supervision over child - whether that order was adequate and appropriate - errors of fact and law - whether the orders went beyond the power authorised under the Children’s Services Act 1965. Children’s Services Act 1965, ss. 46, 49(4)(a)(ii), 49(1), 52(1)(b), 52(2), 52A, 56(1)(b), 88 Childrens Court Rules, r. 30
Counsel:	Mr G.K.W. Page, with him Mr J.R. Tate for the appellant. Mr K.W. Dillon for the respondents.
Solicitors:	Crown Solicitor for the appellant. Corbetts for the respondents.
Hearing Date:	19 November 1996

“... In practical terms a protective supervision order (made under ss 49(4)(a)(ii) and 56 of the Children’s Services Act 1965-1987) leaves the children in the parent’s care whilst the officers of the Director pay periodic visits to check on the children’s welfare and provide necessary counselling. On the other hand a care and protection order enables the Director to take the child into his care and custody and to deliver the child into the care of others such as foster parents (cf. ss 46, 53(2)). ...”