Randjelovic v Reid

[1994] QCA 271

IN THE COURT OF APPEAL	[1994] QCA 271
SUPREME COURT OF QUEENSLAND

Appeal No. 175 of 1993

Before Fitzgerald P.
Davies JA.
Williams J.

[Randjelovic v. Reed]

BETWEEN:

MARJORIE ANNE RANDJELOVIC Appellant

AND:

MARGARET ANNE REED	Respondent
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 28/07/94

This is an application to review and quash an order made by a Magistrate on 4 June 1993 under sub-section 49(4)(a)(iii) of the Children's Services Act 1965 that James Randjelovic, an infant born on 3 March, 1992, "be admitted to the care and protection of the Director-General, Department of Family Services and Aboriginal and Islander Affairs" (the "respondent"). The respondent has placed the infant with a foster mother. The order to review is sought by Marjorie Anne Randjelovic, the infant's maternal grandmother ("the appellant"), who seeks to care for the infant.

It is common ground that the infant cannot be
adequately cared for by either of his parents, and it seems
that neither seeks to do so. Both suffer from schizophrenia.
There is little information available about the father, who
played no part in the proceedings below, but the mother's
illness is acute, and necessitates institutionalisation at
least periodically. Tragically, there is a risk of the order

of 30% to 40% that the infant will also develop chronic

schizophrenia because of genetic factors.

The proceedings before the Magistrate, which occupied 13 hearing days over a period of a year and a day and then resulted in a brief decision some time later, were less than satisfactory, and the substantive issue, or perhaps issues, have become obscured by procedural difficulties. It seemed to be accepted by both parties that, if the appellant is awarded custody of the child, the Magistrate's order of which she complains will cease to operate - or will be able to be vacated - leaving the respondent, if he chooses to do so, to seek an order that he "have protective supervision over and in relation to such child": Children's Services Act, subsection 49(4)(a)(ii). The appellant has made an application for custody to the Family Court, but, again, both parties seemed to accept that she could not obtain an order for custody from that Court while the Magistrate's order which is under review in this proceeding continues in force: Family Law Act, 1975 (Commonwealth), subsection 60H(1). On the other hand, it further seemed to be accepted by both parties that the appellant could apply for custody and guardianship of the infant to the Supreme Court, which could grant her application: Re Tobin Q.L.R. No.26, (Saturday, 9 July, 1994). However, no such application has been made.

This appeal therefore falls to be considered on the basis that, if the Magistrate's order is set aside, then, at least unless and until some other order is made, the infant child will be in the custody of his schizophrenic mother, and the appellant will have no legal right to care for the infant and her ability to do so in fact will depend on the co-operation of her daughter.

The appellant's argument before this Court never really confronted this difficulty. It was founded on the premise that she is the appropriate person to care for her grandchild - an understandable proposition with which it is easy to feel sympathy - and that she would be able to do so safely and well despite the potential difficulties associated with her daughter's illness and possible behaviour towards her son. If the respondent could be convinced of these matters, it might be that, while the infant is under her care and protection, she could be persuaded to place it with the appellant, rather than the present foster-mother, but that is a matter for the respondent's discretion. Alternatively, if a Trial Division Judge could be persuaded of these matters, he or she might award the appellant custody and/or guardianship of the infant. But, that is not before this Court, and in the circumstances it is better that we confine ourselves strictly to the present application, which is to review the Magistrate's decision.

The first question which arises on this occasion is whether the infant is in need of care and protection within the meaning of the Children's Services Act. It was accepted for the appellant that this question falls to be answered on the hypothesis that the infant is not being cared for by the foster mother. Indeed, the appellant seeks to have the question addressed on the hypothesis that she is caring, or at least is willing and able to care, for her grandson. But that is not a satisfactory basis on which to proceed. She has never in fact had the care of her grandson, and has no legal entitlement to care for him or practical ability to do so except as and when permitted by her daughter. Her willingness and ability to do so, if her daughter co- operates, cannot provide a satisfactory foundation for a decision as to the infant's needs. The question whether the infant is in need of care and protection therefore falls to be considered on the footing that, otherwise, his mother has legal custody of him, and is legally able to determine how he is cared for. On that basis, the answer must clearly be in the affirmative: see subsections 46(1)(b) and (o) of the Children's Services Act.

That being so, subsection 49(1) authorized the application which the respondent made to the Magistrate and subsection 49(4) and section 52 provided the course which he was required to follow. No one suggested subsection 49(4)(a)(i) might be relevant, and, in so far as the appellant sought to rely on subsection 49(4)(a)(ii), her argument was based on the misconception, earlier referred to, that the alternative to a care and protection order was that she, not her daughter, would care for, and determine the care of, her grandson. As already indicated, that is an erroneous approach.

That being so, the choice was between a care and protection order in favour of the respondent (subsection 49(4)(a)(iii)), or the refusal of such an order, the effect of which, as stated, would be to leave his mother with the custody of the infant. It was not suggested by the appellant that some other order, not already discussed, could be, or have been, made (subsection 52(1)(b)); for example, an order that the appellant have custody of the infant: cf subsection 50(3). In the circumstances, it seems inevitably to follow that, as matters stand, the best interests of the infant require the care and protection order which the Magistrate made.

It should be emphasised that this decision involves no expression of opinion as to whether or not the appellant should be granted custody or guardianship of the infant or whether or not, if she is granted custody or guardianship, the care and protection order should be revoked.

There was a suggestion by counsel for the appellant that, notwithstanding the nature of this proceeding, this Court could take it on itself to decide entitlement to custody or guardianship. Other considerations aside, that suggestion is quite impractical when, as here, there are a variety of conflicting expert views from medical practitioners and others whom we have not seen give evidence or be cross-examined and there are no detailed findings in the decision sought to be reviewed. The broad approach which would be called for is quite unsuited to a determination of a matter so potentially important to the infant's well-being. In the circumstances, we have found it unnecessary to refer to either of the additional difficulties sought to be relied on at the hearing of the appeal.

It is an unfortunate consequence of the course which has been followed that the appellant is faced with a further proceeding which, it seems, she can ill afford. It is strongly recommended that she be given adequate legal aid.

The outcome of this proceeding, however, is that the order to review should be discharged. There should be no order as to costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 175 of 1993

Brisbane
[Randjelovic v. Reed]

BETWEEN:

MARJORIE ANNE RANDJELOVIC Appellant

AND:

MARGARET ANNE REED Respondent

Fitzgerald P.
Davies JA.

Williams J.

Judgment delivered 28/07/94

Judgment of the Court

Order to review discharged. No order made as to costs.

CATCHWORDS:	INFANTS AND CHILDREN - care and protection - parents unable to care for child because of mental illness - grandmother's application for review of Magistrate's decision to admit child to care and protection of Family Services - if Magistrate's order set aside child would be in the custody of the mother - whether refusal of the order would be in the best interests of the child
Counsel:	Mr N.J. Thompson for the appellant Ms. A. Forbes for the respondent
Solicitors:	Walters and Co. for the appellant Crown Solicitors for the respondent

Hearing Date: 25/07/94