Minister for Community Services v The Children's Court

[2003] NSWSC 863

CITATION:	Minister for Community Services & Anor v The Children's Court & Ors [2003] NSWSC 863
HEARING DATE(S):	Thursday 21 August 2003
JUDGMENT DATE:	19 September 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J at 1
DECISION:	ORDER IN COURT BELOW (IN PART) QUASHED
CATCHWORDS:	CHILDREN'S COURT - CHILD IN FOSTER CARE - CONTACT VISITS BY PARENTS - NO POWER FOR CHILDREN'S COURT TO ORDER DIRECTOR GENERAL OF COMMUNITY SERVICES TO PAY TRAVEL AND ACCOMMODATION EXPENSES OF PARENTS EXERCISING THAT CONTACT
LEGISLATION CITED:	Children's Court Act 1987 Children and Young Persons (Care and Protection) Act 1998 Federal Court of Australia Act 1976 (Commonwealth)
CASES CITED:	B v K NSWSC unrep 24 Sept 1998 Cookson v Lee 1854 23 L.J. Ch 473 Director General v Cook & Ors NSWSC unrep 1 Dec 1995 Director General v G & Ors NSWSC unrep 27 Mar 1998 Director General v Houdek & Ors [1999] NSWSC 1031 Grassby v The Queen 1989 168 CLR 1 Jackson v Sterling Industries Ltd 1987 162 CLR 612 Reid v Howard 1995 184 CLR 1 Re Tyrone NSWSC unrep 5 July 2002
PARTIES :	The Minister for Community Services and Director General Department of Community Services v The Children's Court of New South Wales & Ors
FILE NUMBER(S):	SC 11320/03
COUNSEL:	G.W. Moore (Plaintiff) Submitting Appearance (First Defendant) E. Boyle (Second Defendant) a. Kumar (Third Defendant) P. Singleton (Child)
SOLICITORS:	I.V. Knight, Crown Solicitor (Plaintiffs) Legal Aid Commission (Second Defendant) Stuart & Mills (Child)

LOWER COURTJURISDICTION:	Children's Court
LOWER COURT FILE NUMBER(S):	489/2002
LOWER COURT JUDICIAL OFFICER :	Children's Magistrate Mitchell

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Friday 19 September 2003

11320/2003 - THE MINISTER FOR COMMUNITY SERVICES and DIRECTOR-GENERAL DEPARTMENT OF COMMUNITY SERVICES v THE CHILDREN’S COURT OF NEW SOUTH WALES and others

JUDGMENT

1 HIS HONOUR: A summons has been issued by the Minister for Community Services and the Director General, Department of Community Services as plaintiffs seeking relief in the nature of certiorari in respect of an order made by the Children’s Court of New South Wales. That Court is nominated as first defendant to the summons and it has filed a submitting appearance. The second and third defendants are, respectively, the mother and father of a child born on 10 February 2000 whose identity has been protected by the adoption of a pseudonym “George”. Separate counsel appeared at the hearing for each of the parents and for George. All these argued against the grant of relief sought by the plaintiffs.

2 Some evidence was tendered to provide information as to how the matter of contention arose and some other material of potential relevance to discretionary considerations. The crux of the matter focuses upon an order made in the Children’s Court in these terms:

“That the child have contact supervised by the Department of Community Services, once per fortnight four hours weekly and including one such period on the day before the child is interviewed for the purposes of assessment; the Department of Community Services to pay the rail/bus fares and reasonable accommodation expenses (of the) parents (in Bega).”

3 The order appears to have been understood to mean that parental contact should occur for one four hour occasion per fortnight. The parenthetical additions do not appear in the text of the sealed minute of order but all parties agree that the order should be so understood. The challenge by the plaintiffs is limited to the order for payment of expenses.

4 Some background can be sketched. From October 2000, at which time George was aged about eight months, information and reports were received by officers of the Department of Community Services including reports that the child was at risk of harm. During February and April 2001 George was taken into the temporary care of foster parents for a period of a few weeks. Between May and September 2002 the mother and father signed several Temporary Care Agreements to maintain the child in foster care placement. On 24 September 2002 the Minister applied to the Children’s Court for an order that scheduled aspects of parental responsibility be allocated to the Minister for a period of twelve months. On 4 October 2002 an interim order was made, which has been continued from time to time, and George remains under the parental responsibility of the Minister and in the care of foster carers. On 28 January 2003 a further application seeking a final order was filed. On that day at a hearing in the Children’s Court the order now under challenge was made together with some continuation orders.

5 It is not entirely clear but submissions by counsel suggest that originally the foster carers were resident in the Maitland area or were from that area and frequent contact visits between George and his mother and father took place. By January 2003 the foster carers had moved with George to a property in the Eden-Bega District. The parents are said to have separated in March 2003 and the mother apparently resides in Maitland. The father’s residence was not specified but there was a cryptic reference to the suburb of Hornsby. Be that as it may, the transcript of proceedings in the Children’s Court which was exhibited at the hearing in this Court establishes that, if contact visits are to take place, the parents would have to travel between Sydney (or north of Sydney) and Bega.

6 The issue for determination is the existence of relevant power in the Children’s Court to make the ancillary order for the payment of fares and accommodation associated with authorized contact visits by the mother and father. Counsel for the plaintiffs observed that the order was made in terms against the “Department of Community Services” which is, of course, an unincorporated instrument of State. I note that the application to the Children’s Court was brought in the name of the Director General (by title) but the transcript of proceedings including notation of the appearance of the legal representative for the applicant refer to the “Department of Community Services”. I consider that the specification of the “Department of Community Services” in the order should be treated as no more than a slip and that I should treat it, where appearing, as if it read “the Director General”.

7 The learned presiding magistrate made express reference as his source of power to s15 of the Children’s Court Act 1987 (the 1987 Act) namely:

“15. The court may, in relation to all matters in respect of which it has jurisdiction, make such orders, including interlocutory orders, as it thinks appropriate.”

8 In submissions to this Court counsel raised the possible existence of implied power and another possible source said to arise from s74 of the Children and Young Persons (Care and Protection) Act 1998 (the 1998 Act) namely:

“74 (1) The Children’s Court may make an order directing a person or organisation named in the order to provide support for that child or young person for such period (not exceeding 12 months) as is specified in the order.
(2) The Children’s Court must not make an order under this section unless:
(a) it gives notice of its intention to consider making the order to the person or organisation who would be required to provide support pursuant to such an order, and
(b) the person or organisation is given an opportunity to appear and be heard by the Children’s Court before the Children’s Court makes such an order, and
(c) the person or organisation consents to the making of the order, and
(d) the views of the child or young person in relation to the proposed order have been taken into account.
(3) The Director-General may be required to provide support pursuant to an order made under this section.”

9 Written submissions explored to an extent the difference between conferral of jurisdiction and conferral of power however, counsel for George expressly conceded (for present purposes) that if none of the asserted sources of power supported the order, relief in the nature of certiorari would be available. Counsel for the mother and father adopted submissions made by counsel for George. The three suggested sources are therefore s15 and s74 above noted and implied power. Given the concession, I approach the matter by examining those asserted sources. I have observed that the Children’s Court magistrate specifically adverted to s15 but if the order is supportable from any source, it would contra-indicate intervention by this Court to bring up and quash the order.

10 Section 15 vests power in broad terms and it is appropriate to construe it in that light. Nevertheless the power is not at large. Analogy can be made with s23 of the Federal Court of Australia Act 1976 (Commonwealth) which provides:

“The Court has power in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds as the Court thinks appropriate.”

11 In Jackson v Sterling Industries Limited 1987 162 CLR 612 Brennan J speaking of that provision said:

“….. that is not to say that the court’s discretion to mould relief is at large. The relief which the court is authorized to give does not extend beyond the grant of remedies appropriate to the protection and enforcement of the right or subject matter in issue.”

12 The very widest terms of jurisdiction investment have been used to declare that of this Court. Section 23 of the Supreme Court Act 1970 provides:

“The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.”

13 Nevertheless in Reid v Howard 1995 184 CLR 1 it was observed in the joint judgment:

“Although it has been said that the inherent power of a superior court cannot be restricted to defined and closed categories, the power is not at large.”

14 The order under present challenge requires payment by the Director General of the fares and accommodation expenses of the parents, not of the child.

15 The Children’s Court undoubtedly has power to make orders directly affecting the child including removing a child from a specified place: s48 of the 1998 Act. It was common ground in the court below and in these proceedings that no one was presently seeking to disturb the placement of George with the carers. It was not sought that the child be moved to some place where it was convenient for the parents to exercise contact. I do not find that provision nor any other in the Act creative of some power to order the Director General to pay for an alternative to moving the child. It is noteworthy that s9(a) of the 1998 Act declares that, inter alia, the welfare of a child removed from parents is paramount over the rights of the parents.

16 Any inhibition upon the ability to undertake contact ordered by the Children’s Court relates to matters subjective to the parents namely their claimed inability to afford the cost of travel and not to care of the child. Care of the child is a concept which is distinguishable from contemplation of all or any thing which may be of direct or consequential benefit to the child. Visitation by the parents would fall into the latter category.

17 Accepting the wide meaning to be given to the expression in s15 it can be observed that in cases when it (or a predecessor like provision) has been the subject of consideration no instance can be pointed to where it was construed so widely as to vest power to order payment of expenses which may be incurred outside of the concept of care of the child itself, or to some matter, without which, practical implementation of a function directly specified within the powers of the Court could not be achieved. Director General v Cook & Ors NSWSC (Bruce J) unreported 1 December 1995; B v K NSWSC (Hodgson CJ in Eq) unreported 24 September 1998; Hartingdon & Ors v Director General 1993 17 Fam LR 126.

18 Section 15 does not, in my view, provide a source of power for making an order that the Director General pay the costs of travel and accommodation of the parents in the circumstances.

19 The first alternative raised in argument was implied power. A power may be implied where it is necessary to achieve the carrying out of an object of the statute. It has been suggested that implication may be made to provide detail of great importance, if not actually essential, to the proper and effectual performance of the work which the statute has in contemplation: Craies on Statute Law 7th Edn @ p 111 citing Cookson v Lee 1854 23 L.J. Ch 473 however I would apply the views of Dawson J (which had general agreement of the other members of the bench) in Grassby v The Queen 1989 168 CLR 1 where his Honour said @ 16-17:

“……. a magistrate’s court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent.”

and

“It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be ‘derived by implication from statutory provisions conferring particular jurisdiction’. “

20 It is not an object of either Act to require another to subsidize travelling expenses incurred by parents. In so saying it should be noted that the Children’s Court held (in this case by consent) that pursuant to s71(1)(b) of the 1998 Act that:

“The parents acknowledge that they have serious difficulties in caring for the child or young person, as a consequence, the child or young person is in need of care or protection.”

21 It is not a necessary implication of the objects either of the 1987 or the 1998 Act that there should be power to order the Director General to meet travelling expenses of the parents. That conclusion is not incompatible with decisions that the Children’s Court has implied power to order payment of legal costs: Director General v Houdek & Ors [1999] NSWSC 1031; Director General v G & Ors NSWSC (Black AJ) unreported 27 March 1998.

22 The second alternative had reference to s74 of the 1998 Act. In a written submission counsel for the plaintiffs invited me to find that Re Tyrone NSWSC unreported 5 July 2002 was wrongly decided. In oral submission I was informed that in that case it was conceded that “to provide support” “means money” by which I took to be being conveyed that the Court could order payment of certain expenses. I was further told that such concession was not made in this case and, apparently for completeness, that an appeal had been pursued in Tyrone but by the time of the scheduled hearing the particular child had been “restored” (presumably to its parents) and the Court of Appeal refused leave as the litigation had become essentially academic. I do not need to opine on the correctness or otherwise of Tyrone. A critical restraint on s74 as a source of power is s74(2)(c) which prohibits order in the absence of relevant consent. I do not construe s74(3) as doing anything other than making explicit that the Director General may be a person subject to direction as contemplated in s74(1).

23 Counsel for the mother in particular pointed to the recorded statements of the representative of the Director General (described in the depositions of the court below as appearing for the Department of Community Services) in the Children’s Court. The principal basis of reference was in connection with discretionary issues but it is clear that the Director General did not consent to any order and that would, in my view, render s74 sterile as a source of power. I recognize that there was in the Court below an express statement of willingness to facilitate fares for the mother and father to attend Bega for an assessment procedure which had been directed but beyond that it seems that the assistance offered was via a half fare rail ticket. Again it is not entirely clear, but it seems that the Director General was proposing to subsidize a discounted ticket to which the mother and father might have access as non employed social security dependants. I say it is not clear because it was also said “We (DOCS) want the parents to show their commitment by paying half fare basically”. Although there is this obscurity two further statements by counsel of “clear instructions” only to agree to half fare and not to consent to the “accommodation” remove any scope for arguing that there was consent as required by s74(2)(c).

24 None of the purported sources vest power to make the impugned order.

25 The remaining question is whether the relief sought should be withheld on discretionary grounds. As I am of a view that there was error I do not consider that relief should be withheld. It should be recorded that on behalf of the Director General it was stated that the relevant expenses would voluntarily be met until the scheduled resumption of hearing in the Children’s Court on 7 October next. I do not regard that or the offers made at the hearing in the Children’s Court as foundation for exercising discretion to refuse relief. The Director General is entitled to a ruling on the legal position.

26 I order that so much of the order of the Children’s Court made and entered on 28 January 2003 as directed “The Department of Community Services to pay the rail/bus fares and reasonable accommodation expenses parents” be quashed.

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Last Modified: 09/22/2003