Marshall v B

[2007] TASSC 97

[2007] TASSC 97

CITATION:              Marshall v B [2007] TASSC 97

PARTIES:  MARSHALL, Helen
  v
  B

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  211/2007
DELIVERED ON:  4 December 2007
DELIVERED AT:  Hobart
HEARING DATE:  8 August 2007
JUDGMENT OF:  Evans J

CATCHWORDS:

Family Law and Child Welfare – Child welfare under State legislation – Children in need of protection – Proceedings relating to care and protection – Relevant considerations - Children, Young Person and Their Families Act 1997 (Tas) – Whether risk to the child a precondition to the exercise of the discretion to make an interim care and protection order.

Davison v Queensland (2006) 227 ALR 1; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595, referred to.

Children, Young Persons and Their Families Act 1997 (Tas), s46(1).

Aus Dig Family Law and Child Welfare [511]

REPRESENTATION:

Counsel:
             Applicant:  M J Verney
             Respondent:  Notice of submission filed
Solicitors:
             Applicant:  Verney Walker & Co
             Respondent:  Levis Stace & Cooper

Judgment Number:  [2007] TASSC 97
Number of paragraphs:  15

Serial No 97/2007
File No 211/2007

HELEN MARSHALL v B

REASONS FOR JUDGMENT  EVANS J

4 December 2007

1. The applicant is a person authorised by the Secretary of the Department of Health and Human Services ("the Secretary") to make applications pursuant to the provisions of the Children, Young Persons and Their Families Act 1997 ("the Act") in respect of children. She seeks a review of a magistrate's rejection of an application she made for an interim care protection order in relation to a child. Save for a finding that the learned magistrate erred in rejecting the application, no further or consequential order is sought. Counsel for the applicant says that the notice to review is pursued as a purely academic exercise in order to obtain a determination on whether the learned magistrate applied the correct test when he considered the application. Although I am dubious about whether this is an appropriate basis upon which to pursue a notice to review, I put that concern aside.

1. On 20 March 2007, the learned magistrate made an assessment order for a period of 28 days to secure the care and protection of the child in question. On 16 April 2007, the learned magistrate made an order extending that order for a further 28 days. The legislation covering the making of these orders and all matters in contention before me is the Act. Save where otherwise indicated in these reasons, all references to sections are references to sections in that Act. As to an assessment order, s22(2) provides:

"22      (2)       … the Court may make an assessment order in respect of a child if the Court is satisfied –

(a)    that there is a reasonable likelihood that a child is at risk; and

(b)    that further assessment of the matter is warranted or a family group conference should be held; and

(c)    that –

(i)the assessment cannot properly proceed unless an assessment order is made; or

(ii)it is desirable that the child be protected while the matter is being assessed or a family group conference is being convened and held; and

(d)    that it would be in the best interests of the child to make the order."

1. Section 22(3) details the orders that may be contained in an assessment order. Besides an order authorising the examination and assessment of the child, they include an order that has the effect of requiring persons to provide information, and an order granting custody of the child to the Secretary. Pursuant to s25(4) and (5), an assessment order has effect for a period not exceeding four weeks and may be extended (once only) for a period not exceeding eight weeks where a family group conference is to be held, or four weeks in any other case. Section 54 provides that in any proceedings under the Act, the Court must consider the best interests of the child to be the paramount consideration.

1. On 10 May 2007, the applicant filed an application for a care and protection order in relation to the child.  As to such an order, s42(3) provides:

"42(3)  … the Court may make a care and protection order if –

(a)     the Court is satisfied –

(i)     that a child is at risk; and

(ii)     that a care and protection order should be made to secure the care and protection of the child; or

(b)    the Court is satisfied that –

(i)     proper arrangements exist for the care and protection of a child (whether pursuant to the Secretary approving the arrangements recommended in a decision of a family group conference or otherwise); and

(ii)     the child would be likely to suffer significant psychological harm if the arrangements were to be disturbed; and

(iii)    it would be in the best interests of the child for the arrangements to be incorporated in a care and protection order."

1. Section 42(4) details the orders that may be contained in a care and protection order.  They include orders for a period not exceeding 12 months: as to the custody of and access to the child; placing the child under the guardianship of the Secretary or another appropriate person; requiring the guardian or the child to do, or refrain from doing, specified things; and, providing for the care, protection, health, welfare or education of the child.  Section 42(5) provides that a care and protection order may include conditions to be observed by the persons there listed who, in broad terms, are people involved with the care and protection of the child.

1. The application for a care and protection order came before the learned magistrate on 11 May 2007. Counsel for the father of the child and counsel for the child advised the learned magistrate that the order was opposed. As it was necessary to adjourn the application to a date when a final hearing could proceed, the applicant applied for an interim care and protection order. As to such an order, s46(1) provides:

"46      (1)       If the Court adjourns the hearing of an application for a care and protection order, the Court may also make an interim care and protection order."

1. Pursuant to s42(2) and (3), an interim care and protection order may contain similar orders and conditions to those contained in a final care and protection order, save that pursuant to s42(4), an interim care and protection order only has effect for the period of the adjournment and any subsequent adjournment.

1. Counsel for the father of the child and counsel for the child opposed the making of an interim care and protection order.  In the course of taking submissions on whether he should make that order, the learned magistrate said that he took the view that in order to make an interim care and protection order he must be satisfied that the child was at risk to the same degree as was necessary to justify the making of a care and protection order.  When announcing his reasons for declining to make the order, the learned magistrate reiterated that the test for the making of an interim care and protection order was the same as that which was required to support the making of a final order as set out in s42(3)(a).  He said that he must decide "even at this interim stage whether the child is at risk".  As to whether the child was at risk, his Honour said:

"The psychological assessments are not as yet completed.  Unfortunately, there has been delay in having that process completed.  It may be that the psychologists' assessments will provide evidence that would support such a finding but unless and until it does, I'm not prepared to make a finding that [the child] is at risk and as I've indicated, I must achieve that level of satisfaction before even an interim care and protection order is justified."

1. The learned magistrate, in effect, concluded that a finding that the child was at risk was a precondition to the making of an interim care and protection order.  The applicant contends that in so concluding the learned magistrate erred.

1. As I read the transcript of the hearing, the reasoning process behind the position the learned magistrate adopted proceeds along the following lines:

·ordinarily an application for an assessment order is the first step taken in the procedure the legislation provides for the care and protection of children;

·to make an assessment order, the court must be satisfied "that there is a reasonable likelihood that a child is at risk", s22(2)(a);

·ordinarily an application for a care and protection order is made subsequent to the making of an assessment order and is a step up from the making of an assessment order insofar as it may only be made if the court is satisfied "that the child is at risk", s42(3)(a)(i);

·an interim care and protection order is also a step up from an assessment order, so when making an interim care and protection order, it is not sufficient for the court to be satisfied of "a reasonable likelihood that the child is at risk" and it should be implied that the court must be satisfied "that the child is at risk" before making such an order.

1. On the face of s46(1), the discretion conferred on the court by the phrase "the Court may also make an interim care and protection order" is unconfined. However, no discretion granted by statute is absolutely unconfined. Whilst the statute may not contain any express restrictions on the exercise of the discretion, it must be exercised consistent with the purpose that emerges from the statute for the grant of the discretion, Davison v Queensland (2006) 227 ALR 1, Kirby J at par38. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Mason J, agreed with by Gibbs CJ and Dawson J, said at 40:

"… where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard …".

1. In this case the learned magistrate rightly identified the question of risk to the child as a consideration relevant to the exercise of the discretion to make an interim care and protection order but then elevated that consideration to the level of a precondition to the exercise of the discretion.  In so fettering the discretion, I am satisfied that the learned magistrate erred.  It is one thing to identify considerations relevant to the exercise of a discretion, and quite another thing to make any one consideration a precondition to the exercise of the discretion.  This distinction is demonstrated by two authorities dealing with the discretion conferred by the Personal Injuries Proceedings Act 2002 (Qld), s43(1), which provides:

"43      (1) The court, on application by a claimant, may give leave to the claimant to start a proceeding in the court for damages based on a liability for personal injury despite noncompliance with this part if the court is satisfied there is an urgent need to start the proceeding."

1. This provision forms part of an enactment containing a number of requirements in relation to the commencement of civil proceedings including requirements for the service of timely and detailed notices of accidents. I am in no doubt that the prospects of an application for leave pursuant to that Act, s43(1), would be improved if the applicant:

·provided a reasonable excuse for any delay; and

·demonstrated a reasonably arguable case.

However, notwithstanding the relevance of these considerations, it has been held that they are not preconditions to a grant of leave under that provision as the enactment contains no restrictions on the discretion in question.  In Gillam v State of Queensland [2004] 2 Qd R 251 at pars22 and 23, the court rejected a contention that leave should not be granted under the provision unless the applicant had a reasonable excuse for the delay, and in Davison v Queensland (supra) it was held that there was no requirement that in order to obtain leave under the provision an applicant must demonstrate a reasonably arguable case.  At par14 in that decision Gummow, Hayne, Heyden and Crennan JJ said:

"The Court of Appeal majority said that s 43 was not to be construed 'restrictively' and that the s 43 discretion had an 'unfettered' character. However, the requirement for a reasonably arguable case does restrict and fetter discretion. There is no support for this outcome in the express statutory language or the subject-matter, scope and purpose of the legislation."

Much the same approach has been taken in this jurisdiction to the discretion conferred by the Limitation Act 1974, s5(3), to extend the time within which proceedings may be instituted claiming damages for personal injuries. As to that discretion Zeeman J observed in Butt v Comalco Aluminium (Bell Bay) Ltd, B9/1996, at 9, that whilst the merits of the proposed cause of action are relevant, the establishment of an arguable case is not a prerequisite to the exercise of the discretion.

1. A further reason for not          elevating the question of risk to the child to the level of a precondition to the exercise of the discretion is that the order in question is expressly an interim order.  It has effect for the period of the adjournment of the application for a care and protection order and any subsequent adjournment, s46(4).  Save in exceptional circumstances, the court must not adjourn an application for a care and protection order so that the period between the lodging of the application and the commencement of the hearing exceeds 10 weeks, s45.  Almost invariably an assessment of whether or not to make an interim order of the nature in question is made on the basis of untested and incomplete evidence.  Again, almost invariably, a factor in the assessment of whether such an order should be made is whether, on the available evidence, a prima facie case has been shown for the making of a final care and protection order.  This assessment will involve a consideration of whether there is a prima facie case that the child is at risk.  The very notion of a prima facie case that the child is at risk precludes a final determination on that issue, North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 639.

1. For these reasons I am satisfied that the learned magistrate erred in concluding that a finding that the child was at risk was a precondition to the making of an interim care and protection order.`