In the Marriage of: Donald Earl Mccann Husband and Kerry Ann Mccann Wife and the Director of the Department of Community Services Intervener Appeal

[1986] FamCA 11

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA           APPEAL NO. 257 of 1985
AT PERTH

IN THE MARRIAGE OF:               

M
(Husband)

AND

M
(Wife)

AND

THE DIRECTOR OF THE DEPARTMENT OF
COMMUNITY SERVICES

(Intervener)

BEFORE THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA

ON THE 20TH AND 21ST MARCH 1986

(CORAM: JOSKE, BUTLER & NYGH JJ)

* JUDGMENT DELIVERED 7TH JULY 1986 *

APPEARANCES:

MR. FOULSHAM solicitor of the Legal Department, Department

of Community Services, appeared for the Appellant/Intervenor - the Director-General of the Department of Community Services

MR. WALL solicitor of Messrs. S. Rando & Co. appeared for the first respondent/husband

MRS. BROWNLIE solicitor of the Legal Aid Commission of

Western Australia, appeared for the second respondent/wife

M and The Director of the Department of Community Services (W.A.)
Appeal No. 257/1985
Judgment delivered: 7th July 1986

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FAMILY LAW - CHILDREN - SEXUAL ABUSE - Application for care and protection under State law - whether federal jurisdiction of Family Court of Western
Australia excluded - Access application by father convicted of offence -
Intervention by Director - Weight to be given to objection by Director -
Family Law Act 1975, s.10(1) - Child Welfare Act 1947 (WA) ss 6, 29, 30, 92

The husband had been convicted on three counts of improperly and indecently dealing with a child of the marriage. An application was made by the Director to have the two children of the marriage declared to be in need of care and protection under s.30 of the Child Welfare Act 1947 (WA). That application was adjourned by the magistrate for 12 months pending which the children remained in the care of the mother.

The husband sought access to the children which the Director opposed except on strict conditions as to supervision under the control and observation of his officers. The husband refused to accept these conditions and applied to the Family Court of Western Australia for access. The Director opposed those terms and intervened in the proceedings seeking an adjournment pending the disposal of the proceedings before the magistrate. The learned trial judge dismissed the application and made the orders as between the parents by consent. The Director appealed.

HELD: by Joske, Butler & Nygh JJ

The Family Court of Western Australia had federal jurisdiction -

(a) because the children were still in the care and control of the mother, and

(b) applications for access were not excluded by s.10(1) in any event.

The learned trial judge had not erred in exercising his discretion to assume jurisdiction: Kitchener and Kitchener (1977-78) 34 FLR 453, explained.

However, the trial judge did err in purporting to make orders by consent when the Director did not consent and had raised serious objections to the terms on which access had been consented to by the mother. The issues raised by the Director should have been heard and determined by the trial judge.

Orders set aside and matter remitted for re-hearing. Decision is reportable.

JOSKE, BUTLER & NYGH JJ:

This is an appeal from orders made by his Honour Judge Ferrier of the Family Court of Western Australia defining the conditions under which the husband is to have access to the children of the marriage: MA, born January 1973, and MJ, born July 1978.

The parties were married on 22nd July 1972 and co-habited until August 1985. On 16th April 1985 the husband was convicted in the Court of Petty Sessions Perth on three counts of improperly and indecently dealing with the child MA relating to incidents which took place between October1984 and March 1985.   He pleaded guilty to all counts and was sentenced to two years probation.   The husband has since been undergoing a course of psychiatric counselling conducted by Dr. L. In early August 1985 the child MJ made an allegation to the police about indecent behaviour by her father in her presence which was alleged to have taken place at the same time as the earlier incidents. At this time, the parties finally separated, the children remaining with the wife.

It seems that no charges were laid in respect of MJ's allegations but on 19th August 1985 a Mr. J, a senior social worker employed by the Director-General of the Department for Community Services (W.A.) made two care and protection applications pursuant to s.30 of the Child Welfare Act 1947 (W.A.), to have both children of the marriage declared to be children in need of care and protection. That application came on for hearing at the Perth Children's Court on 8th October 1985 when the matter was adjourned to 12th August 1986. The learned magistrate directed that the children remain with the mother and further recommended that:

"Access be granted to the father provided he continues with
          psychological or family counselling. Such access by [the husband]
          to be on the basis of supervised visiting.    This supervision
          be by a person with whom the children have a close and warm
          relationship".

Following the adjournment, the solicitor for the husband contacted the departmental officer in charge of the case, Ms. V, with a view to arranging supervised access. A case conference was held on 25th October 1985 at the premises of the Children's Protection Service which was attended by [the husband] and his solicitor. A dispute, evolved as to how access should be re-established. The husband proposed that access be exercised at the home of his parents, where he was now residing, and under their supervision. Ms. V preferred to proceed more gradually by first arranging access in the special observation room of the Children's Protection Service. She also did not consider the husband's parents to be suitable supervisors having doubts about their capacity to do so and the closeness of their relationship with the children.  Attempts by Ms. V to discuss those matters with the grandparents were rebuffed by them.  [The husband] was not prepared to accept the observed access offered by the Department.

On 1st November 1985 the husband made application to the Family Court of Western Australia under the Family Law Act 1975 for orders for defined access to be supervised by his parents. Affidavits in support of the application were filed by the husband, by his parents stating their willingness to exercise supervision and by Dr. L stating his view that the offences were the product of a unique period of extreme stress and turmoil and not the result of a specific sexual orientation. Hence he stated in his view that the offences are "most unlikely to occur again".

The Department obtained leave to intervene in the proceedings under s.92 of the Family Law Act and resisted the application by the husband seeking its adjournment sine die.

At the hearing on 12th November 1985 each of the parties were represented as was the Department. His Honour ordered that the parties attend counselling. On 15th November 1985 the matter was back before Ferrier J. Counsel for the husband announced that the husband and wife had agreed on terms of access. Indeed it appears from the wife's evidence at transcript p.18 that the husband had been round to see the children under her supervision. However, the Department continued its objections.

Mr. McKenna then appearing for the Department conceded that the Court had jurisdiction but argued that the circumstances of the case were such that the Court, in its discretion, should decline to exercise it.

His Honour proceeded to exercise the powers of the Court to call of its motion evidence from the mother as to the welfare of the children. [The wife] was sworn and examined by his Honour. She was thereafter cross-examined by Mr. McKenna. No other witnesses were called or examined. At the conclusion of the hearing Mr. McKenna made further submissions opposing the exercise of jurisdiction by the Court in the matter.

In his short judgment, the learned trial judge said at pages 8 and 9 of the appeal book:

"It is common ground between all the parties that it is in the
      interests of the welfare of the children that the husband in
      these proceedings have access to them. To my way of thinking,
      the persons closest to the children in terms of being able to
      interpret and anticipate their wishes and their needs would
      be the mother and the father, and finally the Intervener, in
      that order.

The mother is confident that there would be no repetition of
      the behaviour of the father that led to actions being taken
      by the Intervener. She is not so absolutely confident that
      she does not wish to have some safeguard in that respect, but
      she considers the safeguard is there and can be measured in
      terms of the contact which she, we will say, puts forward as
      being best for the children as between their father and themselves
      and that is during daylight hours on weekends, or for the most
      part daylight hours; that it be in the home of, or more in
      the supervision of, at least one of the husband's parents or
      his sister. At least as relates to the parents she does believe
      and she testifies to a very good relationship existing.

Finally, she has it in mind that should there be any reversion
      in the behaviour of the father towards at least the elder child,
      the child would report the same to her and she would take appropriate
      steps in this Court to cancel any contact or to very much more
      limit contact between the father and the children.

I consider that the mother has not in any way abnegated her
      responsibilities to the children; nor does she wish to do so;
      and I do not think that her responsibilities towards the children
      should necessarily be supervised by a State instrumentality".

He then dismissed the application of the Intervener, concluding with the words at page 10 of the appeal book:

"On the husband's application, by consent, there will be orders
      in terms of the minute".

The terms of that minute as incorporated in his Honour's orders were as follows:

"BY CONSENT:

(a) The husband have reasonable access to the said children
         defined to include

(i) each Thursday between the hours of 6.30 pm and 9.30 pm

(ii) every other weekend from 9.00 am to 9.00 pm
             on Saturday and from 9.00 am to 6.00 pm on Sunday

(iii) on intervening Saturdays between the hours of 9.30
              am and 12.30 pm.

Access aforesaid be supervised by either of the parents of the husband or by his sister MRS. W."

It is from these orders that the Department now appeals. Seven grounds of appeal were listed. The first ground, as presented to this Court by Mr. Foulsham on behalf of the Department, can best be summarized as:

(a) That the Family Court of Western Australia in the exercise of its federal jurisdiction could not exercise jurisdiction in this matter by reason of the provisions of s.10(1) of the Family Law Act, or in the alternative,

(b)    That if the Court did have jurisdiction it should in the exercise of its discretion have refused to exercise it.

Section 10(1) of the Family Law Act 1975 provides as follows:

"10(1) Subject to sub-section (3), a Court shall not make
      an order under Part VII or Part VIII for the maintenance, custody,
      or guardianship of -

(a) a child who, under the law of a State, is a ward of the
          state or a state child or is under the guardianship, or
          the care and control, of -

(i)  a Minister of the Crown of the State;

(ii) an officer of the State; or

(iii) an officer of an adoption agency approved under
                the law of the State; or

(b) a child who has a similar status under a law of a Territory".

It was conceded that sub-section (3) was not relevant in the present proceedings.

It was argued that the children had, by reason of the proceedings initiated by the Department, become children who are under the care and control of an officer of the State of Western Australia, to wit, the Director of the Department for Community Welfare. It was argued that this situation was achieved, despite the fact that the children had remained in the care of the mother throughout, by the operation of s.29 of the Child Welfare Act 1947. Section 29, insofar as relevant, provides:

"s.29. (1) Any officer of the Department authorized
     by the Minister and any police officer may, without
     warrant, apprehend any child appearing or suspected
     to be in need of care and protection or to be an
     uncontrolled child.

(2) When any such child is apprehended, pending the
     hearing of the application, charge or information,
     or during any adjournment of the hearing or during
     any period of remand the child shall be--

(a) taken to his place of residence and there
         left, upon the recognisance of a near
         relative for his appearance;

(b) placed with some respectable person and
         such arrangement or agreement may be made
         as may be necessary or proper for the
         care and maintenance of that child; or

(c) taken to and placed in any Departmental
         centre or Departmental facility of an
         appropriate kind, or such other suitable
         place as is approved by the Director.

(3) Where any child is apprehended in any of the
     circumstances described in subsection (1) of this
     section or subsection (1) of section thirty-eight of
     this Act, he shall, as soon as is practicable, be
     brought before the court to be dealt with according
     to law."

It can be accepted that if a child is apprehended, the powers of placement under sub-section (2) are exercised by the Director by virtue of s.6 of the Act and that thereby pending the determination of the application under s.30, the child is in the care and control of the Director whether or not eventually a committal or placement order is made under s.30(1) of the Act. In this regard the Western Australian legislation bears a strong resemblance to the provisions of s.22(4) of the Social Welfare Act 1970 (Vic) considered by Asche J. in Kitchener and Kitchener (No. 2) (1977/8) 34 FLR 453, and differs from the provisions of s.82(1) of the Child Welfare Act 1939 (NSW) considered by this Court in Sargent and The Director of the Department of Youth and Community Services (NSW), (1986) FLC 91-718.

However, before this situation is reached, the child must have been apprehended under s.92. It is true, as Mr. Foulsham pointed out, that apprehension or arrest can be effected without physical contact by the person being apprehended obeying a verbal command. But even so, evidence is lacking in this case of any apprehension.

It may be open to infer from the copies of the application attached to Ms. V's affidavit in which the words "child, father, mother" appear and have not been crossed out, that the children were present in court. But the application only refers to a summons addressed to the mother to attend court on a particular day. Even if a similar direction had been given in respect of the children, this is not necessarily an apprehension. Otherwise every summons or subpoena commanding a person to attend would constitute an arrest or apprehension.

It would have been different of course if a Departmental officer had come and taken the children to the court, but there is no evidence of that. The statement made by Mr. McKenna from the bar table at transcript 32 that it was the practice of the Department to apprehend children in such cases and that he understood from Mr. J that he did in fact apprehend the children, is hardly admissible evidence of that fact.

Nor is there any evidence of any placement of the children with the mother. It was conceded that the learned magistrate did not have the power to place the children under s.29(2)(b): That was clearly a matter for the Department. In those circumstances it is difficult to see how his Honour could have been satisfied on the evidence that the children were at the relevant time under the care and control of the Director.

Even if those hurdles could be overcome and the children, upon their apprehension, came within the care and control of the Director, there is the further problem that the making of access orders in respect of such children does not appear to be excluded by s.10. Section 10(1) provides that the Court "shall not make an order under Part VII or Part VIII for the maintenance, custody or guardianship" etc. No reference to access occurs in sharp contrast to what appears in paragraphs (cb), (cc), (ce) of the definition of "matrimonial cause" in s.4(1) and in ss. 64(1), 64(1B), 64(2), 68(3) and 68(4). This makes it difficult, if not impossible, to argue that the words "custody or guardianship" in s.10(1) should be read as if they included a reference to access.

It was argued that notwithstanding this difficulty s.10(1) should be read as if it included a reference to access having regard to the decision of the High Court in R v Lambert, ex p Plummer (1980) 6 Fam. L.R. 355. However, on our reading that case offers no support for that proposition. The view of the majority of the High Court in that case was that the Family Court could not be authorised to make an order for custody which was enforceable against the Director of Child Welfare or similar official in respect of a child actually committed to the care and control of such official.
As the Full Court held in In the Marriage of Pobke (1985) 10 Fam. L.R. 408, a similar restriction applies in respect of an order for access to a child who has been committed to the actual care and control of a Director. As all the Justices in the High Court agreed there is no constitutional restriction on the jurisdiction of the Family Court to make an order for custody, and a fortiori for access, of a state ward which is enforceable as between the parents of such child: see Gibbs J, as he then was, at 359.
In the present case this is all that was done and the jurisdiction of the court to do so cannot be doubted. What would happen if on the evidence the children had actually been apprehended and the Director, in the exercise of his ultimate control, actually forbade the wife to give access to the husband is not a matter which we have to consider here.

Next it was argued that the learned trial judge in the exercise of his undoubted discretion should have adjourned the proceedings until the proceedings in the Children's Court had been completed. That course was followed by Barblett J. in the unreported case Zamani and Zamani, Family Court of Western Australia, October 1981. Strong reliance was also placed on the remarks by Asche J. in In the Marriage of Kitchener at 458, 459:

"It would be productive of the greatest difficulty
          and embarrassment if orders made under State Acts
          were countermanded by orders made under the Family
          Law Act and s.10 is designed, so far as possible,
          to avert that situation. It seems to me for that
          reason there is little distinction to be drawn
           between the situation where an application is made
          but not yet heard to have a child declared in need
          of care and protection and the actual declaration
          that a child is in need of care and protection.
          In either case the state has assumed jurisdiction
          properly open to it under the State Act and the same
          evils would follow if this Court were to cut across
          the operation of the State Act whether it be at
          the early stage of the actual application without
          the hearing or after the hearing and determination.
          In either case, the confusion which would result
          by two possible contrary orders is what s.10 is
          designed to prevent or at least control."

As the Full Court in Sargent's case pointed out, those remarks must be read in the light of the facts of that case. In that "case the children had been placed in the actual care and control of a state institution pending the determination of the application for a protection order. There were applications before the Family Court by each of the parties seeking the custody of the children.    Asche J. at 464 adjourned the proceedings until the magistrate had dealt with the application under the Social Welfare Act. He indicated that he would probably order that the wife have the custody

if the magistrate were to adjourn the proceedings on conditions which permitted the wife "to have de facto custody of the children or care and control of them". That of course is the situation in the present case, and consequently the decision, far from supporting the Director-General's case, actually supports the course followed by the learned trial judge. For that reason we cannot find that his Honour erred in the exercise of his discretion on that issue.

The second ground of appeal alleges that the court purported to make an order by consent when the appellant did not consent. This refers to the order which the learned trial judge made on 12th November 1985 when he directed that the parties attend a confidential conference under s.62(1) of the Act, with leave to the intervener to attend if he saw fit. This is not quite the same as ordering the intervener to attend as the ground of appeal states. Having found that his Honour had jurisdiction to deal with the matter, and acted within the proper scope of his discretion to assume jurisdiction, it must follow that his Honour's decision to refer the parties to a conference with a court counsellor cannot be queried.

The third ground is that his Honour purported to make an order by consent when the Department clearly did not consent. This refers to the fact that order 5 of the orders made by his Honour, as engrossed, is headed with the words "By consent". The approach taken by his Honour is shown in the last two sentences of his judgment at pages 9 and 10 where he says:

"In the circumstances, sofar as the application of
     the intervener amounts to a dismissal of the husband's
     application for access, that application of the
     intervener is dismissed. On the husband's application,
     by consent, there will be orders in terms of the minute".

His Honour therefore appears to have treated the application by the Department as an objection to the exercise of the jurisdiction of the Court and once he had dismissed that objection, he seems to have taken the view that the intervener in effect had been removed from the proceedings. This left only the parents as the effective relevant parties and they had consented to orders.

With respect to his Honour this was not the correct approach. Having granted leave to the Director-General to intervene under s.92 of the Act, the Director-General became entitled to all the rights and obligations of a party to the proceedings. It was entitled to a consideration not only of its jurisdictional objections but also the substantive issues raised in the affidavit of Ms. V. The most substantive issue raised in that affidavit was the refusal of the paternal grandparents with whom the father resides to discuss with the Department their role as supervisors, and the refusal by the father himself to co-operate with the Department. There was also the fact testified by [the wife] at transcript pages 12 and 13 that there was not a very good relationship between her and the paternal grandparents and not a warm and loving relationship between the grandparents and the children. There was also the evidence of Ms. V that [the husband] had contacted her on several occasions to try and convince her that MJ had not been abused by him and the somewhat strange evidence of the wife at pages 19 and 20 of the transcript of her acceptance both of the initial allegation by MJ and her subsequent retraction. There was no evidence before his Honour at all about Mrs. W, the alternative supervisor.

These were basic concerns for the welfare of the children which his Honour could not dismiss as he did at page 8 of his judgment by simply ranking the ability to interpret the welfare of the children as mother, father and the Department in that order.

Ground 5 of the appeal states that the Court failed to take proper steps to ascertain the wishes of the children. As the decision of the Full Court in Joannou and Joannou (1985) FLC 91-642 indicates, the wishes of the children, however young, must be taken into account. In the view we have taken, it is not necessary to decide whether in this case his Honour erred in failing to order a Family Report or otherwise ascertain the wishes of the children.

Ground 6 of the appeal states that the Court failed to satisfy itself that the people who are to supervise access are suitable persons and able to protect the children. This ground has already been dealt with and in our view his Honour erred in this regard. Having regard to the nature of the allegations of sexual abuse and the husband's admission of them, there was in our view a positive obligation on his Honour to be satisfied that adequate arrangements had been made to ensure that such conduct did
not re-occur.  There was an issue raised in the allegations by Ms. V as to the suitability of the paternal grandparents and there was no evidence at all concerning Mrs. W.  His Honour made no findings as to these issues trusting them in effect to the mother's judgment. This was of course the result of his Honour's assumption that the mother and even the father was a better judge of the welfare of the children than the Department. Having regard to the expertise available to the Department and its obligation to protect the welfare of children in the State, this is a somewhat bold assumption.

Ground 7 of the appeal states:

"7. The Judge failed to regard the welfare of the
  children as the paramount consideration in that:

(i)       he ordered defined access;

he does not give the child an opportunity
  to refuse access;

he failed to take into account the seriousness
  of the offences of indecent dealing committed
  by the father against the child MA;

he failed to take into consideration the pressure

put on the child MJ by the husband to retract

statements she had made about sexual abuse by

her father the first respondent".

So far as (i) is concerned, this ground is somewhat difficult to understand. One would have thought that in a case such as this an order for defined access was appropriate.

So far as (ii) is concerned, it is not generally desirable to give a child a right of veto over particular instances of access, certainly not children aged 12 and 7 who are liable to a multiplicity of parental pressures.

So far as (iii) and (iv) are concerned, we have already dealt with them. His Honour should certainly have taken into account the seriousness of the offences of indecent dealing of which the husband had been convicted and he should have taken into account the allegations of the pressure put on the child MJ to retract her allegation of sexual abuse in considering whether the arrangements agreed to by the mother were adequate.

For those reasons we have come to the conclusion that his Honour erred in the exercise of his jurisdiction and that consequently the orders should be set aside and the matter remitted to a single judge of the Family Court of Western Australia.

We therefore order:

1.  That the appeal of the intervener be allowed.
     2.  That orders numbered 4, 5, 6 and 7 of the orders made on 12th
         November 1985 be set aside.
     3.  That the matter be remitted to a single judge of the Family
         Court of Western Australia for re-hearing.