ML v Director of Family Services
[1999] FCA 303
•25 MARCH 1999
FEDERAL COURT OF AUSTRALIA
ML v Director Of Family Services [1999] FCA 303
FAMILY LAW AND CHILD WELFARE – stay of proceedings – abuse of process – fresh application for declaration that child is in need of care after expiry of original term – best interests of the child – Children’s Services Act 1986 (ACT), ss 5, 78, 80(4).
Children's Services Act 1986 (ACT), ss 5, 78, 80(4), 81(1)
Magistrates Court (Civil Jurisdiction) Act 1982 (ACT), ss 22, 192
Family LawAct 1975 (Cth), s 93A(2)
Grassby v The Queen (1989) 168 CLR 1 referred to
Jago v The District Court of New South Wales and Others (1989) 168 CLR 23 considered
House v The King (1936) 55 CLR 499 referred to
L v Director of Family Services (1997) 22 Fam L R 275 considered
Walton v Gardiner (1993) 177 CLR 378 considered
CDJ v VAJ [1998] HCA 67 applied
Report of the Australian Law Reform Commission on Child Welfare in the ACT (ALRC 18)
ML v DIRECTOR OF FAMILY SERVICES AND MM AND MJ
A 6 of 1999
MILES, MATHEWS AND LEHANE JJ
CANBERRA
25 March 1999
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
) No A 6 of 1999
CANBERRA DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: ML
APPELLANT
AND: DIRECTOR OF FAMILY SERVICES
FIRST RESPONDENT
AND: MM
SECOND RESPONDENT
AND: MJ
THIRD RESPONDENT
JUDGES: MILES, MATHEWS AND LEHANE JJ
DATE: 25 MARCH 1999
PLACE: CANBERRA
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
) No A 6 of 1999
CANBERRA DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: ML
APPELLANT
AND: DIRECTOR OF FAMILY SERVICES
FIRST RESPONDENT
AND: MM
SECOND RESPONDENT
AND: MJ
THIRD RESPONDENT
JUDGES: MILES, MATHEWS AND LEHANE JJ
DATE: 25 MARCH 1999
PLACE: CANBERRA
REASONS FOR JUDGMENT
THE COURT:
This is an appeal from a decision of Higgins J in the Supreme Court of the Australian Capital Territory, given on 22 December 1998, dismissing an appeal from a decision of the Children's Court of the ACT in which the Chief Magistrate declined to order a stay of an application under s 78 of the Children's Services Act 1986 (ACT) (the Act) that the children, who are the second and third respondents to this appeal, be taken into care. The stay was sought by the appellant, the mother of the children, on the ground that the application was an abuse of process. There was an alternative claim before the Magistrate that the appeal be struck out as an abuse of process. The alternative claim raised identical issues to those in the application for a stay and need not be discussed further.
The jurisdiction of the Children's Court is exercised by the Magistrates Court which, when exercising that jurisdiction, shall be known as the Children's Court (s 20). The provisions of the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT) apply to the exercise of that jurisdiction otherwise than in proceedings relating to child offenders (s 22).
The power to order a stay is conferred by s 192 of the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT):
"192. The court may, at any time, order that the proceeding be stayed on such terms as the court thinks just."
As the power is conferred expressly, there is no need to consider any question of an inherent power in the Magistrates Court: see Grassby v The Queen (1989) 168 CLR 1 at 15-17, per Dawson J.
Although the statutory provision is silent as to the circumstances in which the Magistrates Court will grant a stay, it is clear that the power extends to granting a stay where the proceedings in question are an abuse of process. In Jago v The District Court of New South Wales and Others (1989) 168 CLR 23, Mason CJ said at 25-26:
“It is clear that Australian courts possess inherent jurisdiction to stay proceedings which are an abuse of process: Clyne v NSW Bar Association (1960) 104 CLR 186 at 201; Barton v The Queen (1980) 147 CLR at 96, 107, 116. Subject to statutory provision to the contrary, a court also possesses the power to control and supervise proceedings brought in its jurisdiction, and that power includes power to take appropriate action to prevent injustice: see Hamilton v Oades (1989) 166 CLR 486 at 502-504. But it may be that “injustice” in this context has a limited meaning, although the power is not to be confined to closed categories: Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 639; Hamilton v Oades. In particular, the criteria for determining what amounts to injustice in a civil case will necessarily differ from those appropriate to answering the question in a criminal context. However, for the purpose of applying the principles of abuse of process, the distinction to be drawn between criminal and civil proceedings is not a rigid and inflexible one. It is the nature of the proceedings, not their formal classification, that is important: Jack Brabham Holdings Pty Ltd v Minister for Industry, Technology and Commerce (1988) 85 ALR 640 at 649-651.”
A decision whether or not to grant a stay of proceedings is discretionary and an appeal from such a decision is to be decided in accordance with the well known principles that error must be identified or manifest: House v The King (1936) 55 CLR 499.
The application for the stay arose from the following circumstances.
(1)On 11 June 1998 the first respondent, the Director of Family Services, filed in the Children's Court an application for a declaration under s 78(1) of the Act that the children were in need of care.
(2)The application came before the Children's Court promptly on the following day. A hearing date was fixed for 28 September 1998.
(3)Pending the hearing date the application came before the Children's Court on various occasions and, in its written form, was amended from time to time.
(4)On 28 September 1998 the hearing date was postponed in order to allow the Director to furnish particulars sought by counsel for the children.
(5)The hearing eventually commenced on 2 December 1998 and continued the following day when it was again adjourned part-heard.
(6)On 7 December 1998 an interlocutory proceeding, known as a case stated inquiry, was held by the Chief Magistrate in order to discuss the imminent lapsing of the application under s 80(4) of the Act.
(7)The hearing resumed on 9 December 1998. At about 4.30 pm, before the hearing had concluded, the Director announced that the application filed on 11 June 1998 was withdrawn (or sought leave to withdraw the application, it is not clear which). The Director thereupon sought to file in court a fresh application in writing dated 9 December 1998 seeking the same orders under s 78(1) and relying on the same grounds as the withdrawn application. A copy of the fresh application was served on the representative of the appellant and on the representative of the children.
(8)Over objection, the Chief Magistrate noted (or allowed) the withdrawal of the earlier application and appears to have allowed the fresh application to be filed in court. Counsel for the mother then made an oral application that the fresh application for an order under s 78(1) be stayed. Submissions followed and the Chief Magistrate held that there should be no order staying the further application. Other and consequential orders were made, including an order that the further hearing of the fresh application be fixed for a day in February 1999 and that the children be placed in an approved home pursuant to s 81(1) of the Act.
The appeals to the Supreme Court and to this Court are concerned essentially with the construction and application of s 80(4) of the Act, which provides as follows:
"If an order is not made under this section within 6 months after the making of the application, the application lapses and the child, if he or she is detained under this Part, shall forthwith be released."
Other relevant provisions of the Act are as follows:
"81. Adjournment of hearing
(1) The court may adjourn a hearing under section 80 from time to time but so that a period of adjournment does not, unless the Court considers it necessary, exceed 21 days".
"5. Matters to be considered concerning children
(1) In any proceedings in a court having jurisdiction in the Territory, whether the proceedings are under this Act or under some other law, being proceedings against or concerning or affecting a child, the court shall, in the exercise of its jurisdiction or powers, seek to procure for the child such care, protection, control or guidance as will best lead to the proper development of the personality of the child and to the child's becoming a responsible and useful member of the community.
(2) In the exercise of a power, whether under this Act or under some other law of the Territory, by a body, authority or person, being a power the exercise of which affects or concerns a child, the body, authority or person shall seek to procure for the child the matters referred to in subsection (1).
(3) Subject to subsection (4), for the purpose of subsections (1) and (2), the court, body, authority or person shall have regard to such matters as seem to it or the person to be appropriate and, in particular, to such of the following as are appropriate:
(a)the need to strengthen and preserve the relationship between the child and his or her parents and other members of his or her family;
(b)the desirability of leaving the child in his or her own home;
(c)the desirability of allowing the education, training or lawful employment of the child to be continued without interruption or disturbance;
(d)the desirability of ensuring that the child is aware that he or she must bear responsibility for anything that he or she does that is contrary to law; and
(e)the need to protect the community or a particular person from the violent or other unlawful acts of the child.
(4) For the purposes of subsections (1) and (2), the court, body, authority or person shall regard the best interests of the child as the paramount consideration.
(5)In subsection (4) –
"interests", in relation to a child, includes matters related to the care, welfare or development of the child."
It was submitted on behalf of the appellant before the Chief Magistrate, before Higgins J and on the present appeal that, unless the application for a stay were granted, the purposes of s 80(4) would be defeated, and that the fresh application constituted an abuse of the process of the Children’s Court.
Ms Keys, for the appellant, referred to passages in the Explanatory Statement which accompanied the making of the Children’s Services Ordinance (as the Act then was) on 4 June 1986. The Explanatory Statement noted that the Ordinance was in draft form annexed to the Report of the Australian Law Reform Commission on Child Welfare in the Australian Capital Territory (ALRC 18). The aim of the legislation was stated by ALRC 18 to "design a child welfare system which … provide[s] appropriate and effective assistance to children in trouble … [and to] safeguard children in need of protection” (at xxiv-xxv). To this end the report recommended that child-rearing should normally be left to parents and that “court action should be avoided wherever possible” (at 207). The report recommended:
"… these objectives must be pursued in a way which avoids intrusive intervention in the lives of children and their families. Attention must also be paid to the need for legal safeguards and for those checks and balances so necessary in a system which permits coercive intervention in citizens' lives." (at xxv)
The Report went on to state that "protracted proceedings" are undesirable, particularly with regard to neglected and uncontrollable children (the children in the present case are in the former category, or are alleged to be so). Hence time limits were recommended: first, no adjournments to exceed 21 days except in exceptional circumstances, and, secondly, proceedings to lapse if no order within six months of making an application for a care order. It may be observed that although the recommendation allowed for exceptional circumstances to justify lengthy adjournments, no such allowance was made in order to avoid the lapsing of an application after six months. The Act reflects these recommendations. It may be presumed that it was the intention of the legislature not to grant any power to the Children’s Court to extend the limit of six months in which an order under s 78(1) is to be made. It is common ground that an application under s 78 is made when the written application is filed in the Children's Court, and the application would have lapsed, if not withdrawn, on 10 December 1998. Nothing turns on the fact that the lapsing was avoided by the withdrawal of the application in court on 9 December 1998.
Whilst the provision for lapsing if no order is made within six months of making the application is absolute, there is no express prohibition against the making of a fresh application. Furthermore, there is no time limit on making an application, in the sense that an application must be commenced within a specified period measured against a particular event. Indeed, having regard to the nature of an application under s 78(1), it is unlikely that such a provision would fulfil the objectives of the Act since what is in issue is the welfare of the child and the desirability or otherwise of the child being placed in care.
The language in s 80(4) is free from ambiguity and does not need explanation by reference to ALRC 18. The policy is also clear: normally it is not in the interests of the child subject to care proceedings to be brought to court frequently and repeatedly unless for some purpose which promotes the interests of the child. If an application cannot be determined within six months then, on the face of it, the interests of the child are not served by allowing the proceedings to continue further. In the language of s 80(4) such an application simply lapses. The sub-section is not to be treated as if it authorises the effective continuation of the application by the making of a fresh application and it does not have the effect of raising of any issue estoppel or res judicata arising out of the lapsed application.
The implied requirement in s 80(4) that applications for care orders be determined speedily was not met in the present case. It is not necessary to examine closely the reasons for the failure of the Children's Court to meet those requirements. No doubt the Children's Court faces the familiar problems of shortages of resources and heavy workloads. Those problems appear to have been reflected in the fact that on 12 June 1998, when the application was first listed before the Children's Court, no date for hearing earlier than 28 September 1998 could be obtained. It is unfortunate that on the date fixed for hearing the application could not proceed in the absence of particulars being furnished by the Director to the solicitors acting for the mother of the children. These delays should have and no doubt did put the Children's Court and the parties on notice of the problem of lapsing under s 80(4).
By 9 December 1998, evidence had been given by a number of witnesses and evidence of a number of other witnesses was foreshadowed. It was apparent to all concerned that "time has run out" in the words of the Chief Magistrate. In his discourse with counsel over what should be done, the Chief Magistrate indicated his view that the policy behind s 80(4) meant that the absence of a legislative prohibition against the making of a fresh application does not of itself justify allowing a lapsed application to be renewed as a matter of routine or in order simply to complete a part-heard case. The Chief Magistrate remarked that "the best interests of the children are served in making sure there is an order and the matter does not just operate by default". It was for those reasons briefly stated that the Chief Magistrate ruled that the filing of a fresh application was not an abuse of process and declined to make an order staying the hearing of that fresh application. The Chief Magistrate did not expand upon why the children’s best interests were best served in this way, but it may be presumed that the evidence already called provided some support for the application for a declaration that the children were in need of care at that stage.
At the hearing of the appeal, Higgins J in his ex tempore judgment stated that a court would scrutinize the making of a fresh application, after the lapsing of an application under s 80(4), where issues had already been determined but that there may be situations in which it is impossible for the Children's Court to meet the requirements of s 80(4). His Honour noted his own remarks on a previous occasion in L v Director of Family Services (1997) 22 Fam L R 275, citing authority under the Family LawAct 1975 (Cth) (the Family Law Act), that the terms of s 80(4) indicating that a failure to deal immediately with an application for an interim order relating to custody and soon thereafter with the final order, is both unjust and contrary to the interests of the children affected. His Honour concluded that, in the absence of evidence to suggest that the proceedings had been pursued in a way that was oppressive or had involved unwarranted or unreasonable delay, there was no abuse of process.
Although not spelled out precisely or expressly in the reasons of either the Chief Magistrate or Higgins J, both decisions correctly recognize that the application for a stay had to be decided bearing in mind that the proceedings were brought pursuant to the Act and that the Act requires that the best interests of the children are the paramount consideration.
The issues raised by an application for a stay of proceedings will depend in part upon the nature of the proceedings themselves. In Walton v Gardiner (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ said at 396:
"The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners."
In Walton v Gardiner, their Honours at 397-398 likened the circumstances which might justify a permanent stay of disciplinary proceedings against a medical practitioner with the sense of injustice which inspires the doctrine against double jeopardy. It was submitted on behalf of the present appellant that the situation is the converse in the situation where the mother of the children has had the advantage of the care proceeding lapsing under s 80(4) and that there is an injustice in allowing them to proceed by way of a fresh application.
Nevertheless, whatever may be the situation in criminal or disciplinary proceedings, an application to stay proceedings which concern the welfare of children raises considerations appropriate to that category of proceedings in particular. Recently the High Court has considered the nature of the exercise of the statutory power under s 93A(2) of the Family Law Act to receive fresh evidence on an appeal in proceedings relating to the residence of children. In the majority judgment of McHugh, Gummow and Callinan JJ in CDJ v VAJ [1998] HCA 67, it was said at [104]:
"In the exercise of the discretion conferred by a power such as 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned … in an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion."
Their Honours concluded that the Family Court was plainly right in concluding that the principle of the paramount interest of the child enshrined in s 65E of the Family Law Act was relevant to the question whether the evidence should be admitted by the Full Court and whether the orders of the primary judge should be set aside.
Observing at [152] that “best interests are values, not facts” their Honours concluded further that the discretionary judgment of the Full Court to admit the fresh evidence correctly took into account the paramount principle but failed to give it sufficient weight in relation to the impact it might have on the interests of the child.
For similar reasons we do not think that Higgins J was in error in refusing to set aside the decision of the Children's Court not to stay the fresh application that the children be declared to be in need of care. Both Higgins J and the Chief Magistrate recognized that the application for a stay was to be determined only after a consideration of what was in the best interests of the children. The Chief Magistrate decided that it was in the best interests of the children that, notwithstanding the six month delay since the withdrawn application was first made, the fresh application should continue, relying on the evidence given in the withdrawn application. Higgins J was correct in deciding that the decision of the Chief Magistrate should not be set aside. The appeal will be dismissed. If any party wishes to make an application for costs, submissions in writing are to be lodged within seven days.
I certify that the preceding twenty-
four (24) numbered paragraphs are a
true copy of the Reasons for Judgment
herein of the Court.
Associate:
Date: 25 March 1999
Counsel for the Appellant: Ms J Keys
Counsel for the First Respondent: Mr P Walker
Solicitor for the Respondent: ACT Government Solicitor
Counsel for the Second Respondent: Mr N Headland
Solicitor for the Second Respondent: McGuinness Eley
Counsel for the Third Respondent: Mr N Headland
Solicitor for the Third Respondent: McGuinness Eley
Date of Hearing: 25 February 1999
Date of Judgment: 25 March 1999
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