Re J

[1998] TASSC 95

95/1998

PARTIES:  J, In Re

TITLE OF COURT:  SUPREME COURT OF TASMANIA

JURISDICTION:  ORIGINAL

FILE NOS:  M20/1998

DELIVERED:  13 August 1998

HEARING DATES:  12 August 1998

JUDGMENT OF:  Crawford J

CATCHWORDS:

Family Law and Child Welfare - Child welfare other than under Family Law Act 1975 and related Acts - Crimes and offences by and against children - Children in need of care and protection and neglected and uncontrollable children - Supervision order - Order that child be placed under the supervision of the Director of Community Welfare - Whether Director thereby empowered to have child taken to place of safety.

Child Welfare Act 1960, s36(1).

Aust Dig Family Law and Child Welfare [157]

REPRESENTATION:

Counsel:

Applicant:  D N Lewis

Respondent:  J L Dewar

Solicitors:

Applicant:  Legal Aid Commission of Tasmania

Respondent:  Crisp Hudson & Mann

Judgment category classification:

Court Computer Code:                  

Judgment ID Number:                  95/1998

Number of pages:  2

Serial No 95/1998

File No M20/1998

IN THE MATTER OF THE CHILD PROTECTION ACT 1974 and THE CHILD WELFARE ACT 1960 and IN THE MATTER OF J and IN THE MATTER OF THE SUPREME COURT RULES AS AMENDED

REASONS FOR JUDGMENT  CRAWFORD J

13 August 1998

J is a seven year old boy. His mother applied for an order that the Director of the Department of Community and Health Services andor the Service Centre Manager of Child and Family Services cause J to be returned to and delivered into the care of the applicant andor that a mandatory injunction be issued requiring the return of J to the applicant. Mr Lillas appeared as counsel for the applicant and Mr Dewar as counsel for the Director of Child and Family Services and for the Director for Community Welfare. No point was made about the difference in titles. It was agreed that the application be treated as an application for a writ of habeas corpus.

Purportedly pursuant to an application under the Child Protection Act 1974, s11(1) and the Child Welfare Act 1960, s39(1), a children‘s court ordered on 17 November 1995 that J be placed under the supervision of the Director of Community Welfare for a period of three years, and at the same time it was ordered that the applicant enter into a recognizance in the sum of $100 without surety for a period of three years, with a number of conditions including, for example, that the applicant ensure that J not be subjected to physical or emotional maltreatment and that J comply with the reasonable directions of an assigned Children’s Services Worker. Purportedly pursuant to the Child Welfare Act 1960, ss34 and 37, it was further ordered by a children‘s court on 28 August 1997 that the supervision order be extended for a period of three years from that day “and that the conditions be varied as follows”. No doubt the last words referred to the conditions of the recognizance into which the applicant had been ordered to enter. Further detailed conditions were specified.

On 8 July 1998 Seainin Finnegan-Foster, a child welfare officer of the Department of Community and Health Services, applied in writing to a children’s court at Burnie, pursuant to the Child Welfare Act, ss34 and 37, that J be declared a ward of the State or alternatively, that a further supervision order be made in respect of J. The basis of the application was that the applicant, that is J‘s mother, had not ensured that J was not subjected to further physical and emotional maltreatment and that as a result a condition of the recognizance which was entered into pursuant to the supervision order had not been complied with. That application is due for hearing in the children’s court on 19 August 1998.

In the meantime, on 31 July 1998, the Child Protection Board applied to a court of petty sessions under the Child Protection Act 1974, s10, for an order that J be taken to a place of safety until the other application is heard. Section 10(1) provides that where it appears to a magistrate on application by the Board that a child may have suffered maltreatment, or that there may be a substantial risk that a child will suffer maltreatment, he may, if he considers it desirable in the interests of the child so to do, by order direct that the child be taken to such place of safety as may be specified in the order and be kept in that or some other place of safety for such period as may be specified in the order, not extending beyond thirty days from the making of the order. The learned magistrate declined to make the order sought, not because he considered that on its merits the application should fail, but because he regarded the Director of Community Welfare as having the power to decide where J may or may not reside from time to time by virtue of the supervision order.

At the hearing before me there was only one issue between the parties, that being whether the Director has power under the supervision order to take J to a place of safety without first obtaining an order from a magistrate. Counsel for the applicant submitted that the Director has no such power and that it should therefore be ordered by me that the child be returned to the applicant. Counsel for the respondents submitted that the view of the learned magistrate was correct and that the supervision order empowers the Director of Community Welfare to cause J to live wherever the Director chooses. In this case a direction was made on 3 August 1998, on behalf of the Director, that J “be taken to a place of safety from today until the hearing of the Application to ‘breach’ the Supervision Order to allow appropriate medical, psychological and family assessment to be undertaken and to ensure” J‘s “safety”. That direction was made, it was submitted, pursuant to the Director’s powers under the supervision order.

I reject the submissions for the respondent and agree with the applicant‘s counsel that under the supervision order the Director has no power to direct and require that J be taken to and kept at a place of safety or that J be required to live at any particular place. The supervision order simply placed J under the supervision of the Director and required J’s mother to enter into a recognizance. All the Director may do under the order is supervise J. That involves overseeing or watching over the child but the Director has no custodial power or a power to care for or control the child. The Act does not give those powers to him. That is made clear by other provisions of the Child Protection Act 1974 and the Child Welfare Act 1960 which authorise courts, in certain circumstances, to make orders such as a child protection order, a temporary child protection order, a temporary order authorising a child to be detained in custody in the charge of the Director, an order that a child be a ward of the State, a supervision order and an interim order authorising a child to be detained in custody in charge of the Director. That the power to make such orders has expressly been vested in courts but not in the Director, makes it abundantly clear that the Director has no such powers under a supervision order which merely places a child under his supervision.

The rights and authority of parents are properly regarded as fundamental (see J v Lieschke (1986) 162 CLR 447 at 463) and in the absence of an unmistakable legislative intent or clear judicial authority, ought not be regarded as capable of modification or extinguishment by the exercise of administrative powers.

I hold that the direction made on behalf of the Director on 3 August 1998, that J be taken to a place of safety, was made without power and that the learned magistrate was wrong when he determined that the Director had such a power. It will therefore be ordered that the Director cause the child to be returned to and delivered into the care of the applicant. I will determine the precise terms of the order after discussion with counsel.