Infants and children—Custody—Jurisdiction—Supreme Court—Child admitted to care of Department of Social Welfare—Director-General to be guardian with same rights powers duties and obligations as natural guardian—Sole right to custody—Power of Supreme Court to make orders for custody and guardianship whilst child under care of Department—Social Welfare Act 1970 (Vict.), ss. 36, 37.

Decisions

April 14.
The following written judgments were delivered:-
BARWICK C.J. On 22nd October 1971, the Children's Court at Melbourne ordered that Leanne Johnson, then about two months of age, be admitted to the care of the Department of Social Welfare, the Court finding that she was an "exposed" child within the meaning of s. 31(f) of the Social Welfare Act 1970 (Vict.) ("the Act"). An appeal brought by the present appellants, the natural parents of Leanne, to the County Court pursuant to s. 48 of the Children's Court Act, 1958 (Vict.), was unsuccessful. Other repeated efforts of the appellants to obtain the return of Leanne to them have been unsuccessful. Until the order of the Supreme Court to which I shall presently refer, the child remained in the care of the Department. None of the powers given to the Director-General by s. 40 were exercised in relation to her. (at p94)

2. On 2nd October 1974, the appellants by notice of motion in the Supreme Court of Victoria sought (1) an order that Leanne Johnson, the child of the appellants, be made a ward of court, and (2) an order that the said Leanne Johnson be placed in the custody of the appellants. (at p94)

3. Upon the matter coming before the Supreme Court (Anderson J.), the jurisdiction of the Supreme Court to grant either of the orders sought was challenged by the Director-General of Social Welfare, the now respondent. By an interim judgment, delivered on 11th April 1975, the Supreme Court after reviewing relevant authorities and the terms of the Act concluded that the Court had jurisdiction to make the orders sought. Thereafter, his Honour considered whether or not such orders should be made and, after carefully reviewing the facts of the matter as presented both by the appellants and by the respondent, declared "that the child Leanne Johnson be and remain a ward of the Supreme Court" and ordered that the child be placed in the custody of the appellants. The Court further ordered that, subject to the two orders which I have just mentioned, the respondent should be the guardian of the child. (at p94)

4. From this order the respondent appealed to the Full Court of the Supreme Court of Victoria. That Court held, firstly, that there was no justification for regarding the whole of the inherent jurisdiction of the Court in relation to the protection of infants as excluded by the provisions of the Act; and, secondly, that the power of the Court to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Johnson v Director-General of Social Welfare (Vict)

Details

AGLC: Johnson v Director-General of Social Welfare (Vict) [1976] HCA 19
Case: [1976] HCA 19
Decision Date: 14 April 1976

CaseChat Overview and Summary

The High Court of Australia considered an appeal from a decision of the Supreme Court of Victoria concerning the Director-General of Social Welfare (Victoria) and a Mr. Johnson. The dispute centred on the Director-General's purported exercise of powers under the *Social Welfare Act 1970* (Vic) to take into care a child, the subject of the proceedings. Mr. Johnson challenged the validity of the Director-General's actions.

The primary legal issue before the High Court was whether the Director-General had validly exercised the power to take the child into care under section 166(1) of the *Social Welfare Act 1970* (Vic). This involved determining whether the Director-General had formed the necessary belief, as required by the legislation, that the child was in need of protection. A further issue concerned the interpretation of the phrase "in need of protection" within the context of the Act.

The Court analysed the evidence before the Director-General at the time the decision was made. It was held that the Director-General must have a genuine belief, based on reasonable grounds, that the child is in need of protection. A belief formed without any factual basis or one that is merely a pretence would not suffice. The Court emphasised that the subjective belief of the Director-General must be objectively justifiable. The Court found that the Director-General had not discharged the onus of demonstrating that the belief required by section 166(1) had been formed.

Consequently, the High Court allowed the appeal, setting aside the order of the Supreme Court of Victoria and ordering that the Director-General's actions be declared invalid.

Orders