Ellis v B (a Child)
[1989] TASSC 33
•4 August 1989
Serial No 27/1989
List "A"
CITATION: Ellis v B (A Child) [1989] TASSC 33; (1989) Tas R 94; A27/1989
PARTIES: ELLIS
v
B (A CHILD)
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: LCA20/1989
DELIVERED ON: 4 August 1989
JUDGMENT OF: Green CJ, Underwood and Crawford JJ
Judgment Number: A27/1989
Number of paragraphs: 25
Serial No 27/1989
List "A"
File No LCA 20/1989
ELLIS v B (A CHILD)
REASONS FOR JUDGMENT FULL COURT
GREEN CJ
UNDERWOOD J
CRAWFORD J
4 August 1989
Orders of the Court
Motion to Review allowed.
Order made on 24 February 1989 quashed.
Application remitted to a children's court for determination according to law.
Serial No 27/1989
List "A"
File No LCA 20/1989
ELLIS v B (A CHILD)
REASONS FOR JUDGMENT FULL COURT
GREEN CJ
4 August 2009
This is a motion to review referred to this Court for determination pursuant to s110(1) of the Justices Act, 1959.
On 17 May 1988 a children's court declared the child to be a neglected child pursuant to s34 of the Child Welfare Act and an interim order pursuant to s39(1) of the Act was made. On 8 August 1988 the court made a supervision order pursuant to s34(1)(b) of the Act. On 11 October 1988 an affidavit alleging that the child was in breach of the supervision order was sworn and a warrant authorising specified persons to bring the child before the court was issued. On 12 October 1988 the child appeared before the court when an interim order pursuant to s39(1) of the Act was made ordering the child to be detained in custody in the "care" (sic) of the Director. On 17 January 1989, by means which are not apparent on the materials before us, what was described in his reasons for judgment as "the matter" came before the magistrate who constituted the court which made the interim order and, after some preliminary argument, was adjourned. On 24 February the magistrate made the order which is the subject of this motion to review. In his reasons for judgment the learned magistrate simply said that he dismissed the complaint, but the minute of that order records it as being an order dismissing a complaint charging the child with being a neglected child pursuant to s34 of the Act, although in fact there was no complaint alleging a breach of s34 before the court.
Although the materials before us are not entirely clear it appears that the course which the proceedings should be regarded as having taken is as follows. On 12 October 1988 an application pursuant to s37 of the Act was made and an interim order pursuant to s39(1) was made and the application should be regarded as having then been adjourned sine die. On 12 January 1989 the interim order expired and on 24 February 1989 the original application made under s37 was dismissed.
The learned magistrate dismissed the application on the grounds that he was bound by the decision of Everett J in M v Scarborough, 21/1982, [1982] Tas SR (NC) 302, and that the effect of that decision was that as the period of 3 months specified by s39(3) had expired he had no jurisdiction to make any orders.
In Scarborough's case interim orders had been made pursuant to s39(1) in respect of children whom it had been alleged were neglected children. After a number of adjournments, what was described as "the matter" came on for hearing on a date later than three months after the interim orders had been made and the children were declared wards of the State. Everett J held that as the period prescribed by s39(3) had expired the children's court had no power to make those orders.
With great respect I do not agree with the conclusion reached in Scarborough's case. It is of course quite correct to say that the powers conferred by s39(4) may not be exercised unless an interim order is in force and that by virtue of s39(3) an interim order cannot remain in force for longer than three months. But there is nothing in the Act which suggests that once an interim order is made under s39(1) the court no longer has jurisdiction to make orders under s37. The power to make interim orders under s39(1) is in addition to and not in derogation of the power to make orders under s37 and provided an application under s37 is still on foot and has not been finally determined an order map be made in respect of it irrespective of whether an order has been made under s39(1) and irrespective of whether the period of three months has expired. Whether, and if so under what circumstances an order made under s39(4) should be regarded as a final determination of an application under s37 does not fall for decision in this case.
In this case the application under s37 had not been finally determined and on 24 February 1989 the court still had power to make orders under it.
I record that those conclusions are in conformity with the submissions made by counsel for both parties.
In my view the court should allow the motion, quash the order made on 24 February 1989 and remit the application to a children's court for determination in accordance with law.
File No LCA 20/1989
ELLIS v B (A CHILD)
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
4 August 2009
On 24 February 1989 a children's court consisting of Mr Hill, a magistrate, dismissed proceedings brought pursuant to the Child Welfare Act 1960, s37 upon the applicant's affidavit alleging breaches of a supervision order made with respect to the respondent child. The learned magistrate held that he had no jurisdiction to make any order on the "complaint" (sic).
A motion to review that decision came on for hearing before me and, at the request of counsel for the applicant and counsel for the respondent, I ordered that the motion be referred to the Full Court for determination.
The following facts which gave rise to the order of dismissal are taken from the reasons for judgment published by the learned magistrate:
117 May 1988 Pursuant to the Child Welfare Act, s34 the child was declared to be a neglected child by Mr Hill sitting as a children's court. On making the declaration the learned magistrate made an interim order pursuant to s39 of the Act, that B be detained in the custody and care of the Director for a period of "up to three months".
28 August 1988. The matter came back before Mr Hill for final determination. He made a supervision order for a period of two years pursuant to the provisions of s34(1)(b) of the Act.
312 October 1988. On an affidavit deposing that B. was in breach of the supervision order, Mr Hill, sitting as a children's court, made an interim order, again pursuant to s39 of the Act, that B. be detained in the custody and care of the Director for a period of "up to three months", and apparently adjourned the further hearing of the application under s37.
46 January 1989. "B was to appear before Magistrate Bryan in the Children's Court at Hobart for a reconsideration and possible determination of the matter. He failed to appear and the matter was adjourned until the 11th of January 1989."
511 January 1989. "B was to appear before Chief Magistrate Morris. He again failed to appear and the matter was adjourned sine–die."
612 January 1989. The interim order expired.
717 January 1989. The proceedings under s37 again came on for hearing before Mr Hill. A preliminary point as to the jurisdiction to make any order was raised and the further hearing adjourned to a later date for argument and final determination.
824 February 1989. The learned magistrate dismissed the complaint.
When the proceedings came on for final determination before Mr Hill, the interim order had expired. The learned magistrate held that he was bound by the decision of Everett J in M v Scarborough 21/1982 ([1982] Tas R (NC) 302) in which it was held that, when a children's court has made an interim order pursuant to s39, jurisdiction to make final orders only subsists during the currency of that interim order. Doubt with respect to the correctness of that decision was expressed obiter dicta in Waterhouse v Jones and Ackers (Full Court 35/1984), a decision concerning the extent of the court's power to make final orders in a case where an interim order, made pursuant to the Child Welfare Act, s24, has expired.
This Court is now required to consider the correctness of M v Scarborough s39 provides:
"39–(1) If a children's court is not in a position to decide whether any and, if so, what, order ought to be made under section 34 or section 37 in respect of any child or of any person in respect of whom a supervision order is in force it may make an interim order authorizing him to be detained in custody in the charge of the Director, and, subject to this section, 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 this section.
(2) On the application of the Director, a special magistrate or police magistrate may extend the period for which an interim order is to remain in force.
(3) Notwithstanding anything in subsection (1) or subsection (2), an interim order shall not remain in force for a period longer than 3 months from the date on which it was made.
(4) Where an interim order made by a children's court is in force under this section in respect of a child, a children's court having jurisdiction may, on the application of the Director –
(a) transfer the further proceedings in the case to a children's court held at some other place; or
(b) make such order (other than an interim order) as could have been made in the case by the court by whom the interim order was made.
(5) For the purposes of subsection (4) a children's court has jurisdiction in respect of a child in respect of whom an interim order is in force if it is a court held at a place at which the court is held to which the further proceedings in the case have been transferred under this section or, if those proceedings have not been so transferred, at the place at which the court by which the interim order was made was held.
(6) Where an interim order is in force in respect of any person and the court by which the interim order was made has recorded a finding that would have entitled the court, if it thought fit, to make an order in respect of the child under section 34 or section 37 it is not necessary for any court that subsequently deals with him to hear evidence to establish that finding, except in so far as it may consider that that evidence will assist the court in determining the manner in which he should be dealt with.
(7) ...".
Everett J held that once an interim order had been made the only lawful authority for the making of a final order in the proceedings is s39(4). His Honour went on to say at p6 of the unreported decision:
"In my opinion the argument of counsel for the applicant that, in respect of an interim order, the jurisdiction of a children's court from a temporal view point is confined to a period of three months from the date the making of the order, is correct. It was patently deliberate policy that this strict limitation should apply and the policy found unambiguous expression in a number of the provisions of the Act."
With great respect to his Honour, I consider that such reasoning misconstrues the plain intention of Parliament as expressed by the words of the legislation. In the present proceedings the jurisdiction to make an order finally determining the matter is vested in a children's court by virtue of s 37 of the Act which provides:
"37 Where, on the application of the Director, a children's court considers that the person to whom a supervision order relates –
(a) has failed to observe any of the conditions of the order or any instructions given to him, or any conditions imposed on him, by a child welfare officer or a probation officer in the exercise of the supervision that he has by virtue of the order; or
(b) is living in conditions which are unsatisfactory,
the court may, if it considers that it is in the interests of the welfare of the child so to do, vary the supervision order or make such other order as could have been made at the time at which the supervision order was made, other than an order imposing any penalty or requiring the payment of any damages or costs."
Similarly, in proceedings brought pursuant to s34 with respect to a neglected child or a child who is beyond control, a children's court is given jurisdiction by that section to make final orders to determine the proceedings.
Section 39 is an enabling section. By subsection (1) it gives a children's court which is not immediately in a position to decide what order it should make in proceedings under either ss34 or 37, a power to make an interim order detaining the child in the custody of the Director. On the application of the Director, the period of the order may be extended (subs(2)) but in no event shall such an order be longer than three months (subs(3)). Subsections (4) and (5) do not limit the jurisdiction granted by ss34 and 37. They give additional powers to facilitate the disposition of proceedings brought pursuant to either of those sections. These powers are exercisable by a children's court held at the same place as the initial children's court was held or by a children's court held at another place pursuant to an order of transfer made under the section. In addition to the power to transfer proceedings from one place to another and from one magistrate to another (para(a)), the subsections give a children's court (constituted by a different magistrate) power to "make such order (other than an interim order) as could have been made in the case ... by the court by whom the interim order was made" (para(b)).
Clearly, para(b) does not refer to the children's court which commenced hearing the proceedings under ss34 or 37 and which made the interim order. Its terms assume that the "original children's court" has powers by virtue of some other statutory provision to make orders. Paragraph (b) enables those powers to be exercised by another children's court which has jurisdiction as prescribed by subs(5). Parliament neither stated nor intended s39(4) to be the sole source of power to make final orders determining pending proceedings brought pursuant to either ss34 or 37 in cases where an interim order has been made. The powers in s39(4) are only exercisable on the application of the Director. Of its own motion, the court cannot exercise any power given to it by s39(4).
No doubt because the powers are exercisable only on the application of the Director, Parliament prescribed, by the opening words of s39(4), that they are only exercisable while the interim order is in force. It is only during the currency of such an order that the Director has the care and custody of the child and by reason thereof an interest in making an application (a) for a transfer of the proceedings to another place and perhaps another magistrate or (b) to a children's court, consisting of a magistrate other than the one who made the interim order, for the purpose of final disposition of the proceedings.
Subject to two matters, I would agree with the following observations made by Cox J in Waterhouse v Jones and Ackers (supra) at p.8:
"S39(4) is an enabling provision which permits 'a children's court having jurisdiction' to transfer the proceedings or make such order as could have been made by the court by whom the interim order was made. S39(5) vests jurisdiction in certain courts constituted differently to the court making the original interim order. Neither it nor s39(4) purports to exclude the inherent jurisdiction of the latter court to bring the proceedings to a final determination. If therefore the situation arises 'where an interim order made by a children's court is' no longer 'in force under' s39, it may well be that some other court can no longer be invested with jurisdiction to deal with the proceedings under subs(4), but it could still be argued with some force that the inherent authority and jurisdiction of the children's court which made the interim order remains undisturbed and that court is not functus officio even though the interim order has ceased to have any effect."
Firstly, with respect to proceedings brought pursuant to ss34 and 37, no question of inherent jurisdiction arises. The jurisdiction is expressly conferred by the words of the sections. Secondly, a children's court, other than the original children's court, may be invested with jurisdiction to finally determine proceedings under ss34 and 37 after an interim order has expired, by the exercise of the powers of transfer from one court to another prescribed by s40(1).
I conclude that M v Scarborough was wrongly decided and that the learned magistrate did have the power to make final orders determining the proceedings brought under s37 notwithstanding the expiry of the interim order. I would allow the motion, quash the order of dismissal and remit the matter to the children's court for determination in accordance with law.
File No LCA 20/1989
ELLIS v B (A CHILD)
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
4 August 2009
For the reasons expressed by Underwood J I agree with the orders he proposes. I add some comments of my own.
If the Director applies to a children's court under s37 the court may decide, for example, to adjourn the hearing for say a week and to make an interim order pursuant to s39(1) for that week. On the matter coming back before it, the court might adjourn the hearing for a further week but not renew the interim order. On the application under s37 coming before the court finally for determination, two weeks after it was first made, the court would be exercising the jurisdiction conferred by that section. It would not and could not exercise any jurisdiction conferred by s39(4) for to do so an interim order under s39(1) would have to be in force. There is nothing in s39 which says that once an interim order has been made, perhaps for a few days only, jurisdiction under s37 is removed. It necessarily follows that the power of a children's court to make orders under s37 on an application being made to it by the Director for Community Welfare, does not depend on whether or not an interim order has at any time in the past been made under s39(1) for any particular period of time.
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