Minister for Family and Community Services v Maelyn Batchelor (Chaffey) and Kirsty Maelyn Chaffey and Toni-Rae Chaffey Robyn Forrest and Amanda Dawn Knight (Forrest) v Minister for Family and Community Services..

[1996] SASC 5850

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN, MILLHOUSE AND WILLIAMS JJ

CWDS
Family law and child welfare - welfare of child and right of parents - access between siblings - Youth Court of South Australia - jurisdiction - ambit of orders under s38Children's Protection Act 1993 - access between siblings - mandatory orders compelling co-operation of parents. Children's Protection Act 1993s38, 37, 4; Family and Community Services Act 1972 , referred to. Gubbin v Department of Family Services 183 LSJS 167, discussed.

HRNG ADELAIDE, 8-9 September 1996 #DATE 24:10:1996

Counsel for appellant and respondent
Minister for FACS:  Mr A Moss

Solicitors for appellant and respondent
Minister for FACS::   Crown Solicitor's Office

Counsel for appellant Robyn Forrest
and Respondent Maelyn Batchelor (Chaffey):    Mr C Kourakis

Solicitors for appellant Robyn Forrest
and Respondent Maelyn Batchelor (Chaffey):    Hamilton Lindsay and
  Hemsley

Counsel for respondents Amanda Dawn Knight
(Forrest), Kirsty Maelyn Chaffey and
Toni-Rae Chaffey:   Mr R Croser

Solicitors for respondents Amanda Dawn Knight
(Forrest), Kirsty Maelyn Chaffey
and Toni-Rae Chaffey:   Mr R Croser

ORDER
Dismiss the appeal from decision in the matter of Chaffey. In the matter of Forrest allow the appeal and remit that matter to the Youth Court.

JUDGE1 BOLLEN J
1. These are two appeals from decisions made in the Youth Court. They are all about the power or not to make orders for access to children.

2. Mr Moss, for the Minister, said in opening the appeals:
    "The matters of Chaffey and Forrest are appeals from the Youth
    Court. The matter of Chaffey is an appeal from an order of her
    Honour Judge Dawe made on 17 January 1996 in the Youth Court of
    Adelaide. I don't think the facts of either of the cases are
    germane in any particular sense. It is just in the generality for
    the court to understand the backgrounds of it all.

The appeal in the matter of Forrest is an appeal from an order of
    Judge Crowe made on 1 September 1995 in the Youth Court at
    Adelaide. The parties come from a situation where two of the
    judges in the Youth Court have arrived at different judicial
    decisions in relation to the question which is the issue at bar
    today.

Both the cases involve situations where mothers have the custody of
    a number of their children, children born of different fathers, and
    in one case one child is without the home in care and in the other
    case two children are outside of the home in care. Those children
    in each case have been taken into care as a result of sexual abuse
    by their stepfathers, in effect. The mother in each case has
    effectively stood by the father, essentially in a state of denial,
    and has become alienated from the children outside the family in
    care believing that they have made false allegations against their
    husbands.

What happened in each of these cases is that the child or children
    outside the family in care wish to have contact with their
    siblings, the mother's children who still remain within the home,
    but in each case the mother is hostile to that, either overtly or
    implicitly, and it is impossible for the children outside the
    family to have any access to their brothers and sisters."

3. The facts in the matter of Amanda Knight, also know as Amanda Forrest, are set out by Judge Crowe in his reasons thus:
    "The Minister applied for care and protection orders in respect of
    the child Amanda Knight also known as Forrest.Amanda was born on
    the 28th January, 1981. Her parents separated. In about mid 1982
    her mother began cohabiting with John Forrest. Amanda lived with
    them until August 1983 when she was placed under the guardianship
    of the Minister under the former legislation on the ground of
    physical abuse by MrÊForrest who had, by then, married Amanda's
    mother. Mr Forrest, it appears was convicted of assaulting Amanda
    and sentenced to imprisonment which order was suspended.Amanda
    returned home to her mother and stepfather in April 1985. Amanda's
    mother has now, in addition, four daughters, the children of Mr
    Forrest. Michelle aged 11 years. Mary aged 7 years. Elizabeth
    aged 6 years and Megan aged 5 years.In March 1995 Amanda made
    allegations of physical and sexual abuse by her stepfather and has
    since been in foster care.On the 14th March, 1995, the Chief
    Executive Officer applied for s21 investigation orders and the
    Minister was granted custody.As a result of Amanda's allegations Mr
    Forrest has been charged with a number of serious offences which
    are presently proceeding before the Elizabeth Magistrates' Court.On
    the 5th May, 1995 this application was made. Evidence was called
    in support of the Minister's case only. The evidence, largely
    uncontested, showed clearly that Amanda was a child at risk and
    that an order should be made to secure her care and protection.
    There was no opposition by the parents to an order of guardianship
    which has been made in the proceedings until Amanda attains the age
    of 18 years on the conceded ground that the guardians are unwilling
    to exercise adequate supervision and control over Amanda thus
    placing her at risk. The Minister has also applied for an order
    for access to Amanda by her sisters but this is opposed by the
    mother and I take it the father who has not taken any part in the
    proceedings.Following a request from the Court the Legal Services
    Commission appointed a separate representative, Mrs Dixon to
    interview Amanda's sisters as to their wishes about having access
    to Amanda. Mrs Dixon interviewed the sisters who indicated to her
    that they did not wish to have access with Amanda. MrsÊDixon had
    some reservations as to the genuineness of their expressed refusal.
    Mrs Dixon again interviewed the children and has reported that the
    sisters have expressed to her that they do not wish to have access
    with Amanda, notwithstanding Mrs Dixon assuring them that their
    mother was agreeable to them having access if they so wished.It
    should be said that there is extreme hostility on the part of her
    mother towards Amanda who has been rejected from the family unless
    and until she withdraws the allegations against her stepfather.In
    those circumstances, the Minister asked for the further order to
    provide for the siblings to have access to Amanda.The question
which arises is whether the Court has power under s38 (Court's
    power to make orders) to make such an order, where the Minister is
    not guardian of the siblings and neither the siblings nor their
    guardians are asking the Court to make such an order."

4. Section 38 of the Children's Protection Act 1993 gives the Youth Court many powers to make orders for the welfare of children. It should be read with s37 which gives the Minister power to apply to the Youth Court to secure the welfare of a child.

5. Section 38(1)(f) provides:
    "The Court may make consequential or ancillary orders -
     (i) providing for access to the child;"

1. So far as is relevant the Minister sought these orders:
    "1. An order that the child be placed under the guardianship of the
    Minister until she attains the age of 18 years;

2. An order that the stepfather refrain from having any contact
    with the child;

3. An order providing supervised access to the child by her four
    younger siblings at such times and at such places as may be
    determined by officers of the Department in consultation with the
    child and the mother and such access occurring at least two hours
    per fortnight.

4. An order providing for supervised access to the child by the
    mother at the child's request and at such times and at such places
    as may be determined by officers of the Department in consultation
    with the child and the mother."

6. Counsel for the mother and Mr Croser, counsel for the child, submitted that the Youth Court had no power in the circumstances to order access. The Minister through counsel, submitted that the Court did have that power.

7. It is Order 3, as sought, which causes contention.

8. Judge Crowe decided that the Youth Court had power to make the order for access which was sought before him. Amongst other things, Judge Crowe wrote:
"By s38(1)(f)(i) a court is given explicit power to make a
    consequential or ancillary order which provides for access to the
    child. By whom? Obviously, any person who is a significant person
    for the child and who wishes to see the child or whom the child
    wishes to see. The Court is often reminded by counsel that the
    purpose of access is primarily for the benefit of the child,
    although it also takes account of benefit to the visitor.The
    Minister as guardian has a duty to arrange access where it is
    obviously for the child's benefit at her request unless there is
    some compelling reason in the child's interest not to do so.I refer
to s4(1)(2)(b) prescribing the desirability of preserving the
    strengthening family relationships between the child, the child's
    parents and other members of the child's family, whether or not the
    child is to reside within or her family(sic)."And:"I conclude that
    I have the power to provide for access by consequential order, that
    is, an order in consequence of which access shall take place. I
    accept Mr Croser's submission that IÊought to consider the rights
    of Amanda's sisters. They should have a say as to whether they
    wish to have access with Amanda. I accept that the spirit of the
    U.N. Convention on the Rights of the Child should be observed. I
    am grateful to Mr Croser for providing me with a copy of the High
    Court judgment in TEOH's case (7th April, 1995). I should take
    account of their best interests as a primary consideration. Amanda
    by her stand clearly acknowledges that she respects their rights.It
seems more appropriate to make an order under s38(1)(f)(i) than
    require Mrs Forrest to give an undertaking. Undertakings are
    usually ordered where there is some co-operation by the
    parents.Based on Ms Makiv's proposal for the Minister at page 31 of
    the transcript and in her address I make the following order:-That
    the parents permit, and if necessary, make available each of
    Amanda's sisters to attend at school or some place convenient to
    the sisters, one or more trial periods of supervised access between
    Amanda and her sisters, such access to be supervised by a
    psychologist or other appropriately trained person, provided that
    in the event that Amanda does not consent to any such access visit
    taking place or that in the opinion of such supervisor, any of
    Amanda's sisters genuinely wish not to take part in such access
    visit then such child shall not be required to attend such access
    visit."

9. In the matter of Chaffey Judge Dawe came to a conclusion different to that of Judge Crowe. Judge Dawe set out the facts and made some comments in the following parts of her reasons:
    "The applications before me relate to Toni-Rae Chaffey who was born
    on the 3rd of August, 1982, and Kristy Maelyn Chaffey who was born
    on the 27th of September, 1979, who are the children of Wayne
    Maxwell Chaffey and Maelyn Jeanette Batchelor.On the 25th of March,
    1988, the Children's Court declared both children to be in need of
    care and placed them under the guardianship of the Minister until
    they each attain the age of 16 years. On the 22nd of November,
    1990, the Court affirmed the previous orders for guardianship and
    made certain orders that the mother take twice yearly access.By
    applications filed on the 26th of September, 1995, the Minister of
    Family and Community Services sought orders varying the past
    orders. The new orders sought were that the Minister have
    guardianship of both children until they attain the age of 18 years
    and providing for access by the mother to each of the children upon
    terms and conditions agreed between the parties.Further orders were
    sought, namely that the mother permit and, if necessary, make
    available Sianne and Tammy Godfrey to take access to Toni-Rae and
    Kristy at the request of the children, Toni-Rae and Kristy, and on
    such terms and conditions as may be agreed between the mother, the
    Minister and the children, Toni-Rae and Kristy.On the 4th of
    December, 1995, I made orders by consent of the Minister, the
    separate representative for the children, and without opposition of
    the mother that both children be placed under the guardianship of
    the Minister until they attain the age of 18 years and further that
    following upon therapy with the children, the mother take such
    access to the children at times and places and under such
    conditions as may be recommended by the children's therapist and
    agreed by the Minister and the children's legal representative and
    is consistent with the wishes of the children.The issue of the
    mother's access to the children has been listed for mention in June
    1996 for review by the Court. Certain undertakings were noted
    concerning the plan for on-going therapy for the mother and
    children. The father, Wayne Chaffey, was served with the
    proceedings on the 26th of September, 1995. He took no part in the
    proceedings in relation to the applications before me but it was
    noted in the report of the social worker dated the 25th of
    September, 1995, that Mr Chaffey, the father, indicated that he
    considered the children to be settled where they are and that he
    supported the Department in their application for extension of
    guardianship orders.It is the question of the orders sought by the
    Minister in relation to the question of access between Toni-Rae,
    Kristy, and the siblings, Sianne and Tammy Godfrey, which remains
    to be decided.The only issue currently being considered is whether
    the Court has power to make the orders sought by the Minister. The
    question of whether any such order should be made in the discretion
    of the Court was not before me on this occasion. All parties
    before me (the Minister, the mother and the separate representative
    for the children, Toni-Rae and Kristy) agreed that the question of
    the Court's power to make any order should be determined before the
    issue of the exercise of the Court's discretion was argued.Sianne
    and Tammy Godfrey are the daughters of the mother, MsÊBatchelor, by
    her former defacto husband, David Godfrey. Sianne was born on the
    26th of June, 1987, and Tammy was born on the 14th of August, 1989.
    Sianne remains a child under the guardianship of the Minister,
    however she was returned to MsÊBatchelor's (the mother) care on the
    1st of August, 1992.Mr Moss, counsel for the Minister, submits that
    the Youth Court does have power to make the specific order sought.
    Counsel for the mother, Mr Hemsley, and the separate representative
    for the children, Mr Croser, submit that I do not have power.The
    appropriate power to make an order for access generally is set out
in Section 38 of the Children's Protection Act.The Youth Court of
    South Australia is a creature of statute - the Youth Court Act
    1993. The Youth Court has that jurisdiction which is set out in
    Section 7 of the Youth Court Act which for these purposes is
    limited to jurisdiction to hear and determine proceedings under the
    Children's Protection Act 1993.Section 40 of the Children's
    Protection Act provides:'An order made by the Court under this
    division:-
    (a) may be varied or revoked at any time on application by a party
    to the proceedings; and
    (b) lapses when the child attains 18 years of age.'

Section 38(1) provides:-
    'If the Court finds, on an application under this Division, that
    the grounds of the application have been made out and that an order
    under this section should be made in respect of the child, the
    Court may exercise any one or more of the following powers.'
    Thereafter the sub-sections deal with guardianship orders, custody
    orders or orders directing parties to do or refrain from doing
    certain things.

Section 38(1)(f) states:-
    'the Court may make consequential or ancillary orders -
     (i) providing for access to the child;'

This is the provision upon which the Crown relies when seeking that
    the Youth Court make orders in proceedings concerning Kristy and
    Toni-Rae (and not in proceedings concerning Sianne) that the mother
    permit and, if necessary, make available Sianne and Tammy Godfrey
    to take access to the children, Toni-Rae and Kristy, at the request
    of Toni-Rae and Kristy and on such terms and conditions as may be
    agreed between the mother, the Minister, Toni-Rae and
    Kristy.Counsel for the Minister reminds the Court that Section
    4(1)(b) of the Children's Protection Act requires that in the
    exercise of powers under this Act in relation to a child, the
    powers must always be exercised in the best interests of the child.

Section 4(2)(b) states:
    'Serious consideration must, however, be given to the desirability
    of:-
    (b) preserving and strengthening family relationships between the
    child, the child's parents and other members of the child's family,
    whether or not the child is to reside within his or her
    family.'

There is no doubt that these provisions must be borne in mind when
    the Court exercises any of the powers under the Act. Nonetheless,
    the Court must have a power to exercise under the Act before those
    principles can be observed.The Crown's position is that it is not
    seeking an order which imposes a legal obligation upon the
    children, Sianne or Tammy. Rather, what it seeks is that a legal
    obligation be imposed upon the mother in order to 'facilitate the
    process of the children seeing each other'. The children, Sianne
    and Tammy, are not party to these proceedings but the mother, Ms
    Batchelor, is. It is intended that the mother be bound by an order
    to permit the children, Sianne and Tammy, and to make them
    available, if necessary, to have access to Toni-Rae and Kristy.Mr
    Moss conceded that to be successful in the Minister's application I
need to take an 'unrestricted' view of Section 38(1)(f)(i). He
    rejected what he described as 'a very narrow approach' which would
    give the Court power to make orders only in relation to the child,
    the subject of the proceedings, for the benefit of another
    person.He reminded the Court that access has been for a substantial
    time now considered as not a right of a parent or other party but
    (as has been established in the Family Court cases) an order which
    is made where it is in the best interests of the child. It cannot
    be denied that the appropriate attitude towards access orders must
    be that the order should be made under the Children's Protection
    Act only where such an order is in the best interests of the
child.The Crown argues that Section 38(1)(f)(i) can be read in a
    reasonably wide way so that orders can be made which effectively
    permit the child, the subject of the proceedings, to have contact
    with other people rather than merely be the subject of some order.
    What the Minister is actually seeking, however, is an order binding
    upon the mother that she permit the children, Sianne and Tammy,
    (who are not the subject of any current proceedings before the
    Youth Court) and make them available to have access with the
    children, the subject of these proceedings, Toni-Rae and Kristy.
    If the mother failed to permit or failed to make Sianne or Tammy
    available, she could suffer the penalties applicable (Section
    44).It cannot be doubted that the Youth Court has power to make an
    order permitting another person, say, a grandmother or uncle to
    have access to the child, the subject of the proceedings. It would

    not be necessary for the person who is permitted such access to be
    made a party to the proceedings. The order would be for their
    benefit but would not be an order binding upon them."

10. Much of the submissions made for the Minister is summarised in that passage. Counsel for the mother and for the children each submitted that the Court had no power to make the orders sought for access. Those orders sought were:
    "The abovenamed Minister HEREBY APPLIES to vary the abovedescribed
    order.

The variation(s) sought are:
    11. Guardianship of the Minister until 18 years of age.
    12. Access by mother at request of child on such terms and
    conditions as may be agreed between the parties.

A further new order sought is:
    13. That the mother permit and if necessary make available Sianne
    and Tammy Godfrey to take access to the child at the request of the
    child and on such terms and conditions as may be agreed between the
    mother, the Minister and the child."

14. Judge Dawe wrote:
    "I note that the child, Sianne, is under the guardianship of the
    Minister but, nonetheless, the Minister in proceedings, which do
    not relate to Sianne, comes to this Court seeking an order that the
    mother make the child, Sianne, available for access to her
    siblings. The current provisions of the Children's Protection Act
    1993, Section 43, are similar to the old Section 22 in that it
    states: 'If the Court places a child under the guardianship of the
    Minister or any other person or persons under this Division, the
    Minister or the other person or persons is or are the lawful
    guardian or guardians of the child to the exclusion of the rights
    of any other person.'The Youth Court now has in proceedings in
    relation to the subject child the power to make consequential or
    ancillary orders providing for access to the child.I agree with the
    views of counsel for the mother and the separate representative for
    the subject children on the question of the interpretation of the
    powers of the Court. The only appropriate place in which a power
to make such an order could be found is in Section 38. No reliance
was placed upon any provision of Section 38 other than Section
    38(1)(f)(i). The clear wording of that provision relates to the
    Court making consequential orders providing for access to the child
    being an order which allows or permits another person (whether or
    not a party to the proceedings) to have contact with the child, the
    subject of the proceedings.I am asked to consider that the
    provisions of the Act can be extended to enable me to make an order
    which would oblige a mother to make another child not the subject
    of these proceedings available to have contact with the subject
    child. This, to my mind, is stretching the expression 'access to
    the child' beyond its normal meaning. The word 'to' serves the
    obvious and clear function of indicating that it is a provision
    which is designed to permit another person to have contact with the
    child. It is not designed to be a provision which enables the
    Court to impose an obligation on a person forcing them to have
    contact with the child or making someone else have contact with the
    child.The actual order being sought in this situation is, however,
    that the mother permit Sianne and Tammy to have contact with their
    sisters and, if necessary, make the children, Sianne and Tammy
    available. Leaving aside the question of Sianne being under the
    guardianship of the Minister, I am being requested to impose an
    obligation on the mother to do something in relation to two
    children who are not the subject children in these proceedings.
    The children are in her care. Failure to abide by any order of
    this Court would be an offence under the provisions of the
    Children's Protection Act.I have considered the reasons for the
    Decision of His Honour Judge Crowe delivered on the 1st of
    September, 1995, in the file Minister of Family and Community
    Services v F in the matter of a child, 'AF', otherwise known as
    'AK', wherein His Honour considered the Court's power to order
    access to siblings in similar circumstances. His Honour therein
    concluded that he had the power to provide for access by
    consequential order: 'that is an order in consequence of which
    access shall take place'. His Honour ordered that the parents
    permit and, if necessary, make available each of the child's
    sisters, who were not subject of the Court proceedings, to attend
    for trial periods of supervised access with the child on certain
    strict conditions.An appeal from this Decision has not been
    concluded at this time. I am unable to agree with my learned
brother that the provisions of Section 38 allow me to make the
    orders sought. The order for access is consequential upon or
    ancillary to the order for guardianship already made.I do not
interpret the provisions of Section 38 as enabling me to make
    further consequential or ancillary orders to the extent that the
    mother is required to permit the children, who are not the subject
    of proceedings, before the Court to have access nor indeed to make
    them available for such purpose.As His Honour Justice Duggan
    commented in different circumstances in Gubbin v The Minister of
    Family and Community Services, I would expect that a power to
    compel this sort of conduct would be the subject of an express
    provision in the Act. I do not think that the power can be
inferred from the provisions of Section 38 nor do I think that the
particular provisions of Section 38(1)(f)(i) can be construed to
    give the Court the power to make the particular order sought. I,
    therefore, conclude that I do not have power to make the orders
    sought by the Minister. I dismiss the Minister's application for
    the further new order sought in both files."

15. Thus two judges of the Youth Court have come to different conclusions on the same issue. Arguments similar to those addressed to the Youth Court were addressed to us by counsel for the appellant Forrest, the respondent Chaffey, the Minister and the children.

16. The grounds of appeal of Robyn Forrest, the guardian and mother of Amanda Forrest (or Knight) are:
    "The Learned Trial Judge erred in that:
    1 he had no power to make orders providing for access by the child
    to persons (her siblings) who were not the subject of an
    application for Care and Protection orders under the Children's
    Protection Act 1993 in that while the provisions of Section
    38(1)(f)(i) of the said Act provided him with power to make orders
    for access to the child, they did not provide him with power to
    make orders for access by the child to other persons;

2. further, or in the alternative, he made orders which were
    binding upon persons who were not parties to the proceedings;

3. further, or in the alternative, he failed to join the siblings
    as parties to the proceedings pursuant to Section 47 of the said
    Act before making orders which were binding upon them;

4. further, or in the alternative, he made orders for inter-sibling
    access which were against the wishes of the siblings and the
    child."

17. The grounds of appeal of the Minister in the matter of the Chaffey children are:
    "The Learned Judge erred in deciding that:

1. The provisions of section 4 of the Children's Protection Act
    were of no assistance in determining the ambit of the power
conferred upon the Youth Court by section 38(1)(f)(i) of the
    Act.

2. That the words 'access to the child' in section 38(1)(f)(i) of
    the Act limited the Youth Court to making access orders permitting
    another person to have contact with a child the subject of a
    guardianship order under the Act.

3. The Youth Court had no power to compel the mother, who was a
    party to the proceedings, to make available her younger children in
    her care for access to her older children who are subject to
    guardianship orders under the Act and no longer in her care.

4. A power to compel the mother to make her younger children
    available for access to her older children could not be inferred
from the provisions of section 38 of the Act and that such a power
    to compel would need to be the subject of an express provision in
    the Act."

18. The question of power or no is common to each matter. As MrÊMoss, for the Minister, said:"In each case the Minister for Family and Community Services, who had the guardianship of the children in care, asked the Youth Court to make an order that the mother make the younger siblings not subject to orders available to have access to the children in care."

19. Beyond reminding one of matters that need to be taken into account when making orders for access I do not think that any past case here is directly helpful.

20. I repeat the relevant sub-section.

21. Section 38(f)(I) provides that in relation to a child the subject of an order under s38(1)(a),(b),(c) or (d)
    "the Court may make consequential or ancillary orders -
    (1) providing for access to the child".

22. This power seems at first blush to be very sweeping. Judge Crowe thought it wide enough to found the order which he made. There is clearly much, if I may say so, to be said for that point of view. Judge Dawe thought the provisions of the sub-section inadequate to found the order sought. Judge Dawe thought that the power to make consequential or ancillary orders by which the mother is required to permit children who are not the subject to proceedings to have access was not covered by the sub-section. Judge Dawe thought that such a power could be found only in express and direct terms (IÊuse my words). No such terms are in s38(1)(f)(i). There is clearly, if I may say so, much to be said in support of this point of view.

23. The order which Judge Dawe made is in the nature of a declaratory order. It is: "That the Youth Court does not have power under section 38(1)(f)(i) of the Children's Protection Act, 1993 to require a mother who is a party to proceedings under the Act to make available her younger children in her care, for access to her older children who are subject to guardianship orders under the Act and no longer in her care."

24. The Ministers receives children to his care pursuant to orders made in the best interests of the child. Provisions of the Children'sProtection Act refer to the preservation and strengthening of family relationships between the child and other members of the child's family. It will, in many cases, be advantageous to a child in care to see his or her brothers and sisters. But the fact that the Minister has (say) custody of a child does not automatically put that child out of reach of his siblings. Nor should it. It depends on the circumstances. In his Outline in the Chaffey matter MrÊMoss wrote:"The primary purposes of access is to benefit the child by enabling the child to have contact with important people in his or her life. The interests of parents and others who wish to have contact with the child are secondary. "And:
"'Providing for access to the child' in Section 38(1)(f) of the Act
    may be read as 'providing for access with the child' the subject of
    the application. The purpose of the provision is to create contact
    with the child for the benefit of that child. That access should
    be in the best interests of the child and in keeping with the
    principles to be observed in dealing with children.Section 38(1)(f)
    provides for access with anyone for the purpose of the child's
    benefit.The Court cannot coerce people who are not parties to have
    access with the child the subject of the application but the Court
    can coerce parties to do things necessary (ancillary) to facilitate
    access with the child. Without such coercive element, any order
    'providing for access' may have no practical effect."

25. I think that in enacting s38(1)(f)(i) Parliament has intended to make the passage to access to a child as wide as possible. Any denial or restriction of access will lie in the exercise of the power given by that sub-section. The Court will not allow access to anyone unless it can be said that such access will be in the best interest of, or at least advantageous, to the child. If necessary, those who may have concern at the possibility of an order by way of access can be heard. The Court can order any papers of application to be served on such persons. Children can be represented and their interests safeguarded by counsel for them. The absence of the express terms to which Judge Dawe has referred should not, in my opinion, be fatal to the valuable exercise of a wide power to provide for access.

26. I think that Parliament intended the power to be wide. As I have suggested, when it considered the width of the power granted Parliament would have taken into account the power to investigate any claim.

27. In these circumstances I think, with all respect to the other point of view, that Judge Crowe was right. I think that the power to grant access to the relevant child, by his or her siblings, in each case can be made, even with coercive orders against the mother.

28. The power exists. The protection lies in the exercise or manner of exercise of the power. Let it be said that the power given by the sub- section is very wide. That must have been apparent to Parliament. On the one hand we can say that if Parliament had intended it to be read as a very wide provision it would have expressly said so. But, on the other hand, could not Parliament be thought to have intended the provision to be widely read and, therefore, used no restrictive words? The words used are words which give a wide ambit to the power. If Parliament had not so intended would it not have used restrictive words? I think it would. The words mean what they say. Again, I say protection lies in the method of exercise of the power granted.

29. In the matter of Amanda Forrest I would dismiss the appeal from the order of Judge Crowe. In the case of the Chaffey children I would allow the appeal to the Minister. I would set aside the order of Judge Dawe. I would return the matter to Judge Dawe for her to proceed according to law.

JUDGE2 MILLHOUSE J
30. We have two appeals here, each from a decision of a judge of the Youth Court. Unfortunately their Honours have decided the same point in opposite ways.

31. The point is whether the Court has the power, on the application of the Minister, to order a parent or guardian to make available children to take access to a sibling or siblings who have been removed from the family. Judge Crowe first decided there is power and then Judge Dawe that there is not.

32. I need not say much about the facts. They have been sufficiently set out in each of the admirable Reasons of my brothers Bollen and Williams. Indeed I can express my opinion shortly in view of what my brothers have written.

33. As well we have to decide only whether there is power, not whether on the merits, it should be exercised. All I need say about its exercise is that, if we were to find that there is power, because family relationships have in each case broken down and there is mutual hostility between each mother and the child or children removed from her care, it would be extraordinarily difficult to frame a workable order. Almost certainly someone would be coerced into doing or allowing to be done something quite against her will.

34. The Deputy Crown Solicitor, Mr Allan Moss, for the Minister, appellant in one appeal and respondent in the other, acknowledged that the power for which he contends means stretching words in the Children's Protection Act 1993 further than they have been stretched before. He relied on two sections, section 4 and section 38.

35. I mention s38 first as this sets out the powers of the Court to make orders. Section 38(1)(f)(i) is the relevant part:
"(1) ... the court may exercise any one or more of the following
    powers: ...
    36. the Court may make consequential or ancillary orders -
     37. providing for access to the child; ..."

38. Conventionally an order for access has been made, as a rule, in favour of a parent who does not have custody, custody having been awarded to the other parent. What Mr Moss contends for is, in effect, an order obliging a mother to oblige children in her custody to take access to their sibling or siblings not in her custody. That is an enormous leap and one not before contemplated.

39. In aid of his contention, Mr Moss referred to s4, headed "Principles to be observed in dealing with children". The relevant sub-sections are (1) and (2):-
    "(1) In any exercise of powers under this Act in relation to a
    child- ...
    (2) Serious consideration must - be given to the desirability of
    ... (b) reserving and strengthening family relationships between
    the child, the child's parents and other members of the child's
    family, whether or not the child is to reside within his or her
    family;..."

40. The problem with Mr Moss' argument is that before regard is had to this part, there must be some power in the Act. Only if there is power somewhere else does s4(2) become relevant. Therefore Mr Moss' argument must rise or fall on the interpretation of s38.

41. I suggest his argument must fail, for two reasons. The first is that it means stretching the words "providing for access to the child" much further than the words plainly go. They do not extend to obliging others to take access to a child - even without the complication of obliging a third person, in each case the mother, to facilitate the taking of access. That, because of the human problems, it would be extraordinarily difficult to frame effective orders only emphasises the difficulty with Mr Moss' argument.

42. Secondly even if the meaning of the words could be so stretched, I should be most unwilling to do it. Such an extension of the power of the Court should only be made by Parliament in words which clearly shew its intention to extend that power. The change should not be made by a side wind - and Mr Moss' argument comes to extending the power by a side wind.

43. I therefore suggest allowing the appeal in Forrest v The Minister and sending the matter back to the Youth Court to be considered again in the light of our decision and dismissing the appeal in The Minister v Chaffey.

JUDGE3 WILLIAMS J
44. The question at issue upon these appeals concerns the ambit of access orders which may be made by the Youth Court of South Australia under s38 of the Children's Protection Act 1993. Bollen J has outlined in detail the circumstances in which these appeals arise and the point of law which is common to both matters.

45. The crucial factual elements are as follows:1. A teenage child (A) is the subject of an order under s38 which places the child under the guardianship of the Minister. (I have sometimes called this child "the subject child".) 2. The child A has younger siblings who live with their mother but A is estranged from her mother and lives apart from her. 3. The child A desires to see her siblings and it is in her interest that she do so. 4. The mother (being hostile to A) objects to making the siblings available for the purposes of access to the child A.

46. Upon these basic facts the question then arises as to whether in proceedings taken in respect of the subject child, mandatory orders can be made under s38 requiring the mother actively to cooperate in the access process which in practical terms will be frustrated without her support or in face of her expressions of opposition.

47. Section 38(1) reads as follows:
    "If the Court finds, on an application under this Division, that
    the grounds of the application have been made out and that an order
    under this section should be made in respect of the child, the
    Court may exercise any or more of the following powers:

    (a) the Court may require any guardian of the child, or the child,
    to enter into a written undertaking (for a specified period not
    exceeding 12 months) to do any specified thing, or to refrain from
    doing any specified thing and, if the Court thinks fit, require the
    child to be under the supervision of the Chief Executive Officer or
    some other specified person or authority for the duration of the
    undertaking;
    (b) the Court may grant custody of the child, for a specified
    period not exceeding 12 months, to one of the following persons:
     (i) a guardian of the child;
     (ii) some other member of the child's family;
     (iii) the chief executive officer of a non-government
     organisation that holds a licence under the Family and Community
     Services Act 1972 to provide facilities for the residential care
     of children, for placement of the child in such of those
     facilities as that officer from time to time thinks appropriate;
     (iv) the Minister;
     (v) any other person that the Court thinks appropriate in the
     circumstances of the case;
    (c) the Court may place the child, for a specified period not
    exceeding 12 months, under the guardianship of the Minister or such
    other person or persons (not exceeding two) as the Court thinks
    appropriate in the circumstances of the case;
    (d) the Court may place the child, until the child attains 18 years
    of age, under the guardianship of the Minister or such other person
    or persons (not exceeding two) as the Court thinks appropriate in
    the circumstances of the case;
    (e) the Court may direct a party to the application to do one or
    more of the following:
     (i) to cease or refrain from residing in the same premises as the
     child;
     (ii) to refrain from coming within a specified distance of the
     child's residence;
     (iii) to refrain from having any contact with the child except in
     the presence of some other person;
     (iv) to refrain from having any contact at all with the child;
    (f) the Court may make consequential or ancillary orders-
     (i) providing for access to the child; or
     (ii) providing for the way in which a person who has custody or
     guardianship of the child under an order of the Court is to deal
     with matters relating to the care, protection, health, welfare or
     education of the child; or
     (iii) dealing with any other matter."

48. Jurisdiction to make orders under s38 only arises when (in terms of the preface to the section) the Youth Court finds "on an application" that an order should be made under the section "in respect of" a particular child who is the subject of that application. Moreover an application for such an order (sometimes in the Act called a care and protection order) may only be made at the instance of the Minister and in circumstances where the requirements of s37 have been satisfied in terms of the Minister's opinion that an order should be made "in respect of the childÉ.".ie the subject child. I draw attention to s37(1) which reads as follows:
    "If the Minister is of the opinion-
    49. that a child is as risk; and
    50. that an order under this Division should be made in respect of
    the child to secure his or her care and protection,
    the Minister may apply to the Youth Court for an order under this
    Division."

51. Section 38(1) sets out in five subsections (a) - (e) the principal powers which may be exercised by the Youth Court and in subpar(f) sets out consequential or ancillary orders which may be made in association with the principal powers.

52. I regard it as significant that s38 is drafted in a way which (as now relevant) makes an express distinction (when conferring power) between mandatory and prohibitory requirements. In terms of s38(1)(a) when dealing with a guardian or the child, the Court in the exercise of a principal power, may require undertakings to do any specified thing or to refrain from doing any specified thing. However the section in other respects (s38(1)(e)) only authorises prohibitory orders which direct a party to refrain from contact with the child and the child's place of residence. (Section 47 provides for the joinder of parties to the proceedings).

53. In my opinion the ancillary provision of s38(1)(f) is a provision enabling the Court to provide a right of access to the subject child but I do not see it as supporting any mandatory order against a person who is not that child or guardian. The ambit of power in s38 is specifically conditional in terms of a nexus with the relevant person - the child who is the subject of the application. A nexus with some other child who is not the subject of the particular application will not suffice as the basis of jurisdiction under s38.

54. In summary I consider the position to be as follows:
1. An order under s38 may require generally an act to be done by
    the guardian or by the subject child in the course of access to
    that child; the child and guardian, for example, could be required
    to go to a specified place at a particular time to facilitate the
    mechanics of an access order.

2. The Act does not contain any provision which requires a person
    to take access. An order for access binds the guardian and the
    child but otherwise is permissive in form and effect and is
    expressed in a way which within the limits of the order enables a
    person to have contact with the subject child. (See Seton's
    Judgments and Orders (7th ed) 991-992.)

3. The Act does authorise some orders of a negative or prohibitory
    nature in aid a guardianship or custody order. This follows in my
opinion particularly from the combined effect of s38(1)(b)(e) and
    (f)(iii). For example I consider that an order could be made
    restraining a stranger from actively interfering with an access
    visit.

55. This is not the occasion to review the extent of the Court's powers under s44 to deal with people who aid and abet breaches of Youth Court orders but I do not wish it to be thought that the court is impotent. The form of order made or proposed in each case now under appeal is that the mother of the child "make available each of the siblings" to take access to the child who is the subject of the proceedings. Implicit in any such form of order is a requirement that the parent (at the very least) give permission for the access visit and then actively encourage the siblings to participate therein. Whether a parent should be required to do any such thing is a matter to be determined in properly constituted proceedings in which the interests of the individual siblings is at issue and regarded as paramount.

56. The proceedings which give rise to the present appeals are not proceedings in which an order is to be made "in respect of" a sibling. Such proceedings will only impinge collaterally upon the interests of the siblings and their relationship with their mother. The relevant ambit of power in s38 is an order "in respect of the child" who is the subject of the current proceeding. Section 4 of the Children'sProtection Act sets out the principles to be observed in the exercise of powers under the Act. These powers are to be exercised "in the best interests of the child" (s4(1)(b)). The legislation if given an expansive interpretation may affect incidentally a whole range of civil rights - particularly those which apply as between other family members. Therefore in my opinion in cases where the interests of particular children - in this case the siblings - are not before the Court as the prime consideration I consider that it would be consistent with principle to give a restrictive interpretation to s38 insofar as it might impose upon these relationships which are not directly before the court in the application relating to the subject child.

57. I note that in Gubbin v Department of Family Services 183 LSJS 167 Duggan J in dealing with another aspect of this Act refused to infer from the legislation a power of personal compulsion in circumstances where Parliament might have been expected to deal with the subject expressly if the power had been within the legislative contemplation. In the application of s38 I am likewise reluctant to infer a power of compulsion against the mother in her dealings with the siblings; in my opinion the relevant interests of the siblings in relation to this mother are not the subject of the relevant application.

58. In my opinion Judge Dawe was correct in her decision; I would dismiss the appeal from her decision in the matter of Chaffey. In the matter of Forrest I would allow the appeal from the order of Judge Crowe and remit that matter to the Youth Court to enable the matter to proceed according to law.