Director-General of the Department for Community Development v T'Hart
[2003] WASCA 110
•28 MAY 2003
DIRECTOR-GENERAL OF THE DEPARTMENT FOR COMMUNITY DEVELOPMENT -v- T'HART & ORS [2003] WASCA 110
| (2003) 27 WAR 185 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 110 | |
| THE FULL COURT (WA) | 28/05/2003 | ||
| Case No: | FUL:163/2002 | 12 MARCH 2003 | |
| Coram: | MURRAY J WHEELER J HASLUCK J | 12/03/03 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | DIRECTOR-GENERAL OF THE DEPARTMENT FOR COMMUNITY DEVELOPMENT PIETER T'HART SUSAN T'HART SAM ZEEDAN AISHA ZEEDAN |
Catchwords: | Supreme Court Parens Patriae jurisdiction Whether excluded by s 184 of the Family Court Act 1997 Child a ward under Child Welfare Act 1947 Absence of consent by Director¬General to institution of proceedings in the Family Court Whether Supreme Court has power to resolve the matter in issue |
Legislation: | Child Welfare Act 1947 (WA), s 9A, s 10B, s 49(1) Family Court Act 1977 (WA), s 5, s 36(2)(b), s 162(1), s 184(1), s 202 Rules of the Supreme Court 1971, O 12 r 6(2) Supreme Court Act 1935, s 16(1)(d) |
Case References: | Carseldine v Department of Children's Service (1974) 133 CLR 345 P v P (1994) 181 CLR 583 T'Hart & Anor v Director-General of the Department for Community Development & Ors (2002) 29 Fam LR 581 Z.P. v P.S (1994) 181 CLR 639 Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 In Re Elizabeth (1989) 96 FLR 248 In Re Jane (1988) 94 FLR 1 Jones v Moylan (1997) 18 WAR 492 L v Dalton (1988) 12 Fam LR 701 Minister for the Interior v Nevens (1964) 113 CLR 411 Morris v Zanki (1997) 18 WAR 260 R v Demack; Ex Parte Plumber (1977) 137 CLR 40 Royal Automobile Club v Sydney City Council (1992) 27 NSWLR 282 Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : DIRECTOR-GENERAL OF THE DEPARTMENT FOR COMMUNITY DEVELOPMENT -v- T'HART & ORS [2003] WASCA 110 CORAM : MURRAY J
- WHEELER J
HASLUCK J
and
IN THE MATTER of s 16(1)(d) of the Supreme Court Act 1935 (WA)
- Appellant (First Defendant)
AND
PIETER T'HART
SUSAN T'HART
First Respondents (Plaintiffs)
SAM ZEEDAN
AISHA ZEEDAN
Second Respondents (Second Defendants)
(Page 2)
Catchwords:
Supreme Court - Parens Patriae jurisdiction - Whether excluded by s 184 of the Family Court Act 1997 - Child a ward under Child Welfare Act 1947 - Absence of consent by Director¬General to institution of proceedings in the Family Court - Whether Supreme Court has power to resolve the matter in issue
Legislation:
Child Welfare Act 1947 (WA), s 9A, s 10B, s 49(1)
Family Court Act 1977 (WA), s 5, s 36(2)(b), s 162(1), s 184(1), s 202
Rules of the Supreme Court 1971, O 12 r 6(2)
Supreme Court Act 1935, s 16(1)(d)
Result:
Leave to appeal granted
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant (First Defendant) : Mr A F Dickey QC &
- First Respondents (Plaintiffs) : Mr C P Shanahan
Second Respondents (Second Defendants) : No appearance
Solicitors:
Appellant (First Defendant) : State Crown Solicitor
First Respondents (Plaintiffs) : Bowen Buchbinder Vilensky
Second Respondents (Second Defendants) : No appearance
(Page 3)
Case(s) referred to in judgment(s):
Carseldine v Department of Children's Service (1974) 133 CLR 345
P v P (1994) 181 CLR 583
T'Hart & Anor v Director-General of the Department for Community Development & Ors (2002) 29 Fam LR 581
Z.P. v P.S (1994) 181 CLR 639
Case(s) also cited:
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559
In Re Elizabeth (1989) 96 FLR 248
In Re Jane (1988) 94 FLR 1
Jones v Moylan (1997) 18 WAR 492
L v Dalton (1988) 12 Fam LR 701
Minister for the Interior v Nevens (1964) 113 CLR 411
Morris v Zanki (1997) 18 WAR 260
R v Demack; Ex Parte Plumber (1977) 137 CLR 40
Royal Automobile Club v Sydney City Council (1992) 27 NSWLR 282
Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218
(Page 4)
1 MURRAY J: I agree entirely with the reasons now published by Hasluck J. I have nothing to add.
2 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Hasluck J. I agree with his Honour that the appeal of the Director-General should be dismissed, for the reasons which his Honour gives.
3 So far as the notice of contention is concerned, I prefer to express no view on that issue. The appeal having been dismissed on other grounds, it is not necessary to consider it. There is to my mind an argument that s 16(1)(d) of the Supreme Court Act is a law which "provides for" the imprisonment, detention or residence of a child. Although it is not expressly directed to those matters, the parens patriae jurisdiction would certainly permit orders to be made in relation to the residence of a child. It might be thought odd that a child welfare law for the purposes of s 202(2) of the Family Court Act was intended to encompass only those written laws which deal narrowly with the matters referred to in s 202(2), but would not encompass written laws which provide for some, or all, of those matters as part of a much broader jurisdiction. That in my view is an issue which remains an open question.
4 HASLUCK J: The principal question for determination in this appeal is whether the Supreme Court can exercise its parens patriae jurisdiction in respect of the care and welfare of the subject child pursuant to s 16(1)(d) of the Supreme Court Act 1935.
5 The appellant, who is the Director-General of the Department for Community Development, contends that the parens patriae jurisdiction of the Supreme Court has been displaced or rendered inoperative by s 184(1) of the Family Court Act 1997 (WA). The first respondents contend that proceedings under the parens patriae jurisdiction of the Supreme Court are of a different nature to proceedings for relief under the Family Court Act and do not fall within the restriction concerning extraneous proceedings effected by s 184 of the Family Court Act.
Background
6 The subject child, "A", was born out of marriage on 2 October 1998. "A" has three half brothers. On 8 March 1999 "A" and two of his brothers, R1 and R2, were apprehended under the provisions of the Child
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- Welfare Act 1947 (WA) upon the basis that they were in need of care and attention.
7 The evidentiary materials indicate that R1 and R2 have been placed with the second respondents since 15 July 1999. On 9 August 1999 an order was made in the Children's Court committing "A" to the care of the Department for Family and Children's Services for a period of two years. Child "A" was then placed in the care and protection of the first respondents in December 1999. He has been residing with them continuously since that time.
8 The original order of the Children's Court was extended on 10 July 2001 in accordance with the powers vested in the Minister by s 49(1) of the Child Welfare Act 1947 as delegated pursuant to s 9A and s 10B of the same Act. The effect of the order was to extend the committal of the subject child for a further period of two years expiring on 8 August 2003.
9 On 3 April 2002, a case conference comprising officers of the Department was held to consider whether "A" should continue to reside with the first respondents or whether he should be placed with the second respondents and thereby live with his brothers, R1 and R2. On 17 April 2002 the case conference decided that "A" should continue to live with the first respondents.
10 The second respondents then sought a review of that decision. This review was undertaken by the Department's Case Review Board which handed down a written decision on 11 July 2002 recommending that "A" be placed with the second respondents so that he would be reunited with his brothers. The Director-General of the Department decided to accept this recommendation.
11 It was against this background that the first respondents decided to commence legal proceedings in the Supreme Court. They did not seek to quash or challenge the validity of the Director-General's decision to accept the Case Review Board's recommendation. Instead, they sought to invoke the parens patriae jurisdiction of the Supreme Court which is reflected in s 16(1)(d)(ii) of the Supreme Court Act. The provision in question reads as follows:
"1. Subject as otherwise provided in this Act, and to any other enactment in force in this State, the Supreme Court -
…
(Page 6)
- (d) shall be a court of equity, with power and authority within Western Australia and its dependencies -
…
(ii) to appoint guardians and committees of the persons and estates of infants, lunatics, and persons of unsound mind according to the order and course observed in England, and for that purpose to inquire into, hear, and determine by inspection of the person the subject of inquiry, or by examination on oath or otherwise of the party in whose custody or charge such person is, or of any other person or persons, or by such other ways and means by which the truth may be best discovered, and to act in all such cases as fully and amply to all intents and purposes as the said Lord Chancellor or the grantee from the Crown of the persons and estates of infants, lunatics, and persons of unsound mind might lawfully have done at such date."
12 The first respondents commenced proceedings against the appellant and the second respondents by way of an originating summons dated 5 August 2002. The summons set out the history of the matter including a statement to the effect that the appellant's decision to accept the Case Review Board's recommendation was not in the best interests of "A" and would adversely affect his welfare in that it did not give sufficient weight to the bond established between the first respondents and the child and gave too much weight to the object of reuniting "A" with his brothers. The first respondents sought an order that "A" remain in the care and protection of the first respondents until 8 August 2005 being the remaining period of his current wardship under the Child Welfare Act.
13 I digress briefly to observe that although the originating summons identified 8 August 2005 as the expiry of the period of wardship it appeared to be common ground at the hearing of the appeal that the operative date is in fact 8 August 2003. This is established by the
(Page 7)
- affidavit of Ian Andrew Allan sworn 11 March 2003 to which is exhibited a true copy of the order for extension made pursuant to the Child Welfare Act.
14 In response to the originating summons, the appellant took out a chamber summons dated 29 August 2002 for orders setting aside the originating summons for want of jurisdiction pursuant to O 12 r 6(2) of the Rules of the Supreme Court 1971. The application was made on the ground that the jurisdiction of the Supreme Court to determine the application for the relief sought in the originating summons had been excluded by s 184(1) of the Family Court Act.
15 The matter came before McLure J of the Supreme Court on 17 October 2002 for argument. I note in passing that the second respondents were not represented at the hearing. Likewise, they were not represented before the Full Court on the hearing of the appeal.
16 On 25 October 2002 McLure J dismissed the appellant's application to set aside the originating summons for want of jurisdiction. In due course I will turn to her reasons for decision: T'Hart & Anor v Director-General of the Department for Community Development & Ors (2002) 29 Fam LR 581.
17 My understanding is that as a consequence of this decision "A" has remained in the care and custody of the first respondents pending the outcome of this appeal against the decision.
18 The appellant filed notice of motion for leave to appeal against the decision and arrangements were made for the question of leave and the issues raised by the draft notice of appeal to be heard together by a Full Court constituted by three Judges. The proposed grounds of appeal were as follows:
"A. The learned Judge erred in law in finding that section 184(1) of the Family Court Act 1997 (WA) did not exclude the jurisdiction of this Honourable Court to determine the Plaintiffs' application.
B. The learned Judge erred in law in finding that the effect of section 202(1) of the Family Court Act 1977 (WA) was to exclude the jurisdiction of the Family Court of Western Australia to make the order sought by the Plaintiffs.
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- C. The learned Judge erred in law in finding that the words 'proceedings that may be instituted under this Act' in section 184(1) of the Family Court Act 1997 (WA) require that the Family Court of Western Australia have jurisdiction to determine and grant relief in respect of the subject matter."
19 The application for leave to appeal and the matters raised by the draft notice of appeal were brought before a Full Court of three Judges on 12 March 2003. At the conclusion of the hearing the Full Court resolved that leave to appeal should be granted and the appeal dismissed upon the basis the Full Court would provide reasons for its decision in due course. These reasons have been prepared accordingly.
Statutory provisions
20 Section 36(2)(b) of the Family Court Act provides that the Family Court has non-Federal jurisdiction throughout the State, subject to the Family Law Act and the Child Welfare Act, to make orders in respect of the welfare of any child of a marriage and any child whose parents were not married to each other at the time of the birth of the child or subsequently, whether or not the child is a member of a family.
21 Section 162(1) provides that in addition to the jurisdiction that a court has under this Act in relation to children, a court also has jurisdiction to make orders relating to the welfare of children.
22 I digress briefly to observe that counsel for the appellant in the present case submitted that the latter provision gives the Family Court powers that are virtually equivalent to the parens patriae jurisdiction. He cited various authorities in support of that proposition including P v P (1994) 181 CLR 583 at 598, 607 and Z.P. v P.S (1994) 181 CLR 639 at 646.
23 The next provision of importance for present purposes is s 184(1) of the Family Court Act which provides that:
"Proceedings that may be instituted under this Act must not be instituted otherwise than under this Act."
(Page 9)
24 Section 202 of the Family Court Act relates to child welfare laws. It provides:
"(1) A court must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the control or in the care (however described), of a person under a child welfare law unless -
(a) the order is expressed to come into effect when the child ceases to be under that control or in that care; or
(b) the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent has been obtained from a person who, under the relevant child welfare law, has responsibility for the control or care (however described) of the child.
(2) Nothing in this Act, and no decree under this Act, affects -
(a) the jurisdiction of a court (whether of a kind referred to in section 8(a) or (b) or otherwise), or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under control or in the care (however described) of a person under a child welfare law;
(b) any such order made or action taken; or
(c) the operation of a child welfare law in relation to a child.
(3) If it appears to a court that another court (whether of a kind referred to in section 8(a) or (b) or otherwise) or an authority proposes to make an order, or to take any other action, of the kind referred to in subsection (2)(a) in relation to a child, the first-mentioned court may adjourn any proceedings before it that relate to the child."
(Page 10)
25 Child welfare law is defined in s 5 of the Act which provides:
" 'child welfare law' means this Act, the Adoption Act 1994, the Child Welfare Act 1947, the Young Offenders Act 1994 and any other written law providing for -
(a) the imprisonment, detention or residence of a child; or
(b) the care, treatment and protection of a child who has a mental illness;"
26 At a first glance, these provisions suggest that the Family Court has jurisdiction to make an order of the kind sought by the first respondents, that is to say, an order concerning who is to have care and protection of the subject child. Such an order appears to fall within the jurisdiction conferred by s 162 of the Family Court Act whereby orders may be made relating to the welfare of children. However, as appears from earlier discussion, it is not in fact open to the first respondents in the circumstances of the present case to approach the Family Court for such an order because the appellant, as a person who has responsibility for the control or care of the child, is not prepared to provide her consent to the institution of proceedings in the manner prescribed by s 202(1)(b) of the Family Court Act.
27 The withholding of consent has prompted the first respondents to invoke the parens patriae jurisdiction conferred upon by s 16(1)(d)(ii) of the Supreme Court Act. Thus, as McLure J noted at par 3 of her reasons for decision, the issue for determination is whether s 184(1) of the Family Court Act ousts the Supreme Court's parens patriae jurisdiction in relation to a child who is a ward under the guardianship of the Director-General pursuant to the Child Welfare Act 1947. The appellant contends that s 184(1) expressly prohibits the institution of proceedings concerning the welfare of a child under any other Act if such proceedings may be instituted under the Family Court Act.
Reasons for decision
28 Justice McLure was of the view that the legislative purpose and effect of s 184 of the Family Court Act is, subject to specified exceptions, to render the jurisdiction of the Family Court exclusive. She observed that this was the conclusion reached by the High Court in P v P (supra). However, the same case established that the effect of s 202(1) of the Act
(Page 11)
- was to exclude the jurisdiction of the Family Court to make a welfare order concerning a ward without the consent of the Director-General.
29 Her Honour then proceeded to hold that as the Family Court did not have jurisdiction to determine the first respondents' application, s 184(1) did not exclude the Supreme Court's parens patriae jurisdiction to determine the application in question.
30 Her Honour recognised that such an interpretation of the Family Court Act might be said to allow to the Director-General a capacity in practical terms to determine the choice of forum because, by consenting to the initiation of proceedings in the Family Court, she could thereby deprive the Supreme Court of its inherent jurisdiction to deal with proceedings relevant to the welfare of a child. Nonetheless, McLure J did not regard that consequence as justifying a construction of s 184(1) which would have the effect of ousting the jurisdiction of the Supreme Court.
31 The ruling I have just described was sufficient to dispose of the appellant's application to set aside the originating summons for want of jurisdiction. However, McLure J went on to deal with a submission in the alternative advanced by the first respondents, namely, that the effect of s 202(2) of the Family Court Act is to allow to the Supreme Court a concurrent jurisdiction with the Family Court in that the parens patriae jurisdiction can be characterised as a child welfare law which, under and by virtue of s 202(2), is not affected by the Family Court Act. She concluded that the Supreme Court did not have jurisdiction under s 202(2) and as to that issue ruled against the first respondents.
32 I pause to note that as a consequence of this latter ruling, the first respondents sought leave at the hearing of the appeal to rely upon a notice of contention to the effect that the order of the Court at first instance should be affirmed upon grounds additional to the ground relied upon by her Honour in dismissing the appellant's application. The first respondents contend by their notice that her Honour erred in law when concluding that s 16(1)(d) of the Supreme Court Act is not a "child welfare law" within the meaning of s 5 of the Family Court Act and, as a consequence, that the jurisdiction conferred upon the Supreme Court is not preserved by s 202 of the Family Court Act. For ease of reference, I will call this the "notice of contention issue".
(Page 12)
Issues on appeal
33 It is apparent from par 16 and par 17 of McLure J's judgment that certain matters were not in dispute. The parties accepted that the Family Court has jurisdiction to make an order as to who is to have the care and protection of a child. Such an order would be a welfare order under s 162 of the Family Court Act. Further, the Supreme Court has parens patriae jurisdiction to make such an order save for the effect of s 184 of the Family Court Act. Thus, the principal issue on this appeal is whether the parens patriae jurisdiction of the Supreme Court in respect of the care and welfare of the subject child has been displaced or rendered inoperative by virtue of s 184(1) of the Family Court Act.
34 The appellant submitted on appeal that the parens patriae jurisdiction of the Supreme Court has not been abolished. It has simply been rendered inoperative in the circumstances of the present case by virtue of s 184(1) because that provision, in circumstances where proceedings could be instituted under the Family Court Act, expressly prohibits the institution of proceedings "otherwise than under this Act". This means that proceedings for a welfare order are prohibited under any other Act including the Supreme Court Act.
35 The appellant placed some reliance upon the opening words of s 16(1) of the Supreme Court Act whereby the parens patriae jurisdiction is said to be subject to any other enactment in force in this State. The appellant submitted further that it was immaterial that in the circumstances of the present case proceedings could not actually be instituted under the Family Court Act while consent to the institution of proceedings was being withheld. The appellant submitted that s 202 does not affect the operation of s 184(1). It simply prevents the Family Court from making an order with immediate effect in respect of wards where the Department has not consented to the proceedings. It does not, in its terms, expressly prevent the institution of proceedings.
36 Put shortly, the appellant submitted, s 202 should be regarded as a provision concerning the manner in which the jurisdiction of the Family Court is to be exercised, rather than as a provision excluding jurisdiction. It renders ineffective (so long as consent is being withheld) any purported exercise of jurisdiction by the Family Court by declaring that the Family Court cannot make any orders while consent is being withheld.
37 I am not persuaded by this line of argument. For essentially the same reasons as those given by her Honour Justice McLure, I consider that in the circumstances of this case the parens patriae jurisdiction of the
(Page 13)
- Supreme Court has not been displaced or rendered inoperative by s 184(1) of the Family Court Act. Section 184(1) does not expressly purport to repeal s 16(1)(d)(ii) of the Supreme Court Act or otherwise to dispose of the parens patriae jurisdiction. In the absence of clear and unambiguous language providing for the abolition or suspension of the parens patriae jurisdiction it must be presumed to continue in force: Carseldine v Department of Children's Service (1974) 133 CLR 345 at 351.
38 To my mind, the prohibition upon the institution of proceedings contained in s 184 is confined to situations in which the Family Court is in a position to make orders relating to the welfare of children as a consequence of the institution of proceedings. This is evident from the terms of s 162(1) which speaks of the Court having jurisdiction to make orders relating to the welfare of children. If no orders can be made (as a consequence of consent having been withheld in the manner allowed for by s 202(2)) then the jurisdiction of the Family Court to make orders cannot be said to have been enlivened. It is only when the jurisdiction of the Family Court has been enlivened by proceedings in respect of which enforceable welfare orders can be made that the parens patriae jurisdiction of the Supreme Court can be said to have been displaced or ousted.
39 This interpretation is consistent not only with the language of s 184 of the Family Court Act but also with the scheme of the Act. Section 202 relates to child welfare laws and provides, in effect, that orders are not to be made by the Family Court in respect of a child in the care of a non-consenting person (such as the Director-General) under a child welfare law. In other words, as McLure J recognised at par 25 of her judgment, the scheme of the Act is that "the Family Court does not have jurisdiction to grant relief of any nature relating to a State ward that takes effect during the period of the wardship".
40 Further, the term "proceedings" is defined by s 5 of the Family Court Act to mean a proceeding in a court. This presupposes that in the exercise of a defined jurisdiction the court in question has power to make binding orders. The suggestion that a court has a jurisdiction of sorts which is rendered inoperative is not persuasive.
41 The underlying reality is that if, as in the present case, the Director-General exercises the entitlement allowed to her by s 202(2) and does not consent to the institution of proceedings in the Family Court then no welfare order can be obtained in proceedings of that kind. If the interpretation contended for by the appellant were upheld, then it would
(Page 14)
- not be open to the interested parties to apply to the Supreme Court for relief because, on the appellant's view of the matter, the effect of s 184(1) is to oust the jurisdiction of the Supreme Court. This would leave the Director-General holding the field and able to make decisions in respect of the ward without supervisory powers being exercised by any Court.
42 Such an interpretation appears to be inconsistent with the scheme of the legislation which clearly contemplates that the Courts will continue to have jurisdiction in regard to such matters. This reinforces my conclusion that the jurisdiction of the Supreme Court has not been ousted by s 184(1) of the Family Court Act in the circumstances of the present case (where the Director-General's consent is being withheld). I consider that the appeal should be dismissed.
43 For the sake of completeness, I must now turn to the issue reflected in the first respondents' notice of contention.
44 The effect of s 202(2) of the Family Court Act is to preserve the jurisdiction of a court to make an order under a child welfare law. The latter term is defined to include not only the statutes specifically mentioned but also "any other written law" providing for the imprisonment, detention or residence of a child. The respondents say that this definition is broad enough to embrace (and thus to preserve) the parens patriae jurisdiction of the Supreme Court.
45 In my view, the operation of the parens patriae jurisdiction reflected in s 16(1)(d) of the Supreme Court Act is not preserved as a "child welfare law" by s 202 of the Family Court Act. The jurisdiction allowed for by s 16(1)(d) of the Supreme Court Act may require that consideration be given to matters such as the residence of a child but it cannot be characterised as a written law "providing for" the specified matters, namely, imprisonment, detention or residence. I endorse the view expressed by McLure J concerning this issue. I did not consider that the appeal should be dismissed upon the basis set out in the respondents' notice of contention.
Summary
46 In summary, then, for these reasons I joined in the orders made at the hearing on 12 March 2003 that the appellant be granted leave to appeal upon the grounds set out in the draft notice of appeal, but that the appeal be dismissed.
12