Re Josie
[2004] NSWSC 642
•9 July 2004
CITATION: RE JOSIE [2004] NSWSC 642 HEARING DATE(S): 9 July 2004 JUDGMENT DATE:
9 July 2004JUDGMENT OF: Levine J DECISION: 1. The preoceedings are to be known as "Re Josie".; 2. The plaintiff is excused from naming the father of the child as a defendant.; 3. I make the declaration in para 1 of the summons filed 18 June 2004.; 4. The order set out in para 2 of the summons is quashed.; 5. No order as to costs. CATCHWORDS: Children's Court - Children and Young Persons (Care and Protection) Act 1998 ss3, 69, 79, 81 - parental responsibility solely to Minister - limit of power of Children's Court LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998 ss3, 69, 79, 81 CASES CITED: George v Children's Court of New South Wales (2003) 31 Fam LR 218
Grassby v The Queen (1989) 168 CLR 1
Craig v State of South Australia (1995) 184 CLR 163
Re Edward (2001) 51 NSWLR 502PARTIES :
FILE NUMBER(S): SC 11860/04 COUNSEL: R J Bromwich
(Plaintiffs)D M Falloon
(Second defendant)K Thompson
(Child representative)SOLICITORS: I V Knight
(Plaintiffs)Marsdens
(First defendant)Brian Muir & Co
(Second defendant)I V Knight
Dignan & Hanrahan
(Third Defendant)
(Child representative)
LOWER COURTJURISDICTION: Children's Court LOWER COURT FILE NUMBER(S): LOWER COURT
JUDICIAL OFFICER :Magistrate B A Schurr
[2004] NSWSC 642
Ex tempore: revisedIN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONJUSTICE DAVID LEVINE
FRIDAY 9 JULY 2004
11860 OF 2004
RE JOSIEJUDGMENT (Children’s Court - Children and Young Persons (Care and Protection) Act 1998 ss3, 69, 79, 81 – parental responsibility solely to Minister – limit of power of Children’s Court)
1 By summons filed on 18 June 2004 the Minister for Community Services and the Director General of the Department of Community Services, the first and second plaintiffs, seek relief as follows:
- 1. A declaration that the order of the third defendant, the Children’s Court of New South Wales, that “there be no change in the young person’s placement until further order” concerning a child born on 13 May 1989, and made at Campbelltown on 19 May 2004, was beyond power.
- 2. That that order be quashed.
2 The proceedings therefore involve a challenge to the purported exercise of jurisdiction by the Children’s Court in making that order in court proceedings brought under the Children and Young Persons (Care and Protection) Act 1998.
3 Certain formalities have thus far been attended to, namely that the proceedings have been ordered to be known as “Re Josie” and that the proceedings have been conducted in closed court.
4 There remains one matter of a formal nature, and that is that an order be made that the plaintiffs be excused from naming the father of the child as a defendant. I make that order excusing the plaintiffs from so doing, based upon the affidavit of Donna Lynette Ward sworn 1 July 2004.
5 In support of the summons an affidavit of Carol Anne Askew, Solicitor, sworn 18 June 2004 has been read. It deposes to historical and other formal kinds of matters, one of which only appears from today’s agitations to be to a certain extent in issue. The affidavit annexes the transcript of proceedings before the Children’s Court on 19 May 2004 before her Honour Magistrate Shurr, and on 26 May 2004 before her Honour Magistrate Farnan.
6 The first defendant is the mother of the child. The second defendant is the maternal aunt of the child. The child is presently residing with the maternal aunt. The Minister wishes, as I understand it, to have the child placed in foster care.
7 The relevant chronology can be stated as follows. On 6 April this year proceedings were commenced by the Director General seeking an emergency care and protection order under s46 of the Act. I am informed by way of submission that that application was supported by evidence that apparently related to a physical assault. That evidence is not otherwise before me.
8 On 7 April 2004 an emergency care and protection order was made for a period limited to fourteen days. On 20 April 2004 the Director General filed an application seeking court orders. Again I interpolate, any such documentation constituting an application of that kind is not before me.
9 On 21 April 2004 an application for care orders was first listed before the Court, and what is described as an interim order for parental responsibility was made in favour of the Minister, which order was continued on 12 May 2004.
10 On 19 May 2004, being the first of the two days of which the transcript is in evidence before me, without admissions being made consent was forthcoming to a finding that the young person was in need of care and protection on the grounds of having been or likely to be physically ill treated pursuant to s7(1)(c) of the Act, and the Children’s Court was advised of the Director General’s proposal to remove the young person from the home of the maternal aunt and place her in foster care.
11 The exhibit to the affidavit in support of the summons, namely the transcript, discloses that there was discussion and argument, but there was made – and this is on page 15 of annexure A, which is the transcript of that day – the following orders by her Honour Magistrate Shurr:
- “1. I order that there be no change in the placement of the young person until further order”.
- Her Honour then deals with certain assessment orders and then her Honour says:
- “2. “Interim orders of parental responsibility to the Minister to continue”.
12 I gather that the next thing which occurred was that on 26 May 2004 the Children’s Court was advised of the Director General’s intention to commence the proceedings presently before this Court, and on that day the two orders to which I have already referred were continued.
13 It is the case for the plaintiffs that the first order, “that there be no change in the young person’s placement until further order”, was made without power and should be quashed.
14 At an early stage in the proceedings before me I remarked, prior to the development of submissions, that on its face there appeared to be an inconsistency in any event between the substance of the order under challenge and the substance of the other order, that parental responsibility was to be in the Minister. It is desirable, I am persuaded, that the summons be resolved on the basis, if the basis is made out, that the problem arose not by reason of any ex facie inconsistency, but by reason of a more fundamental flaw, namely the absence of jurisdiction to make the former order.
15 One matter to which I have referred as possibly being in factual dispute, is whether there was ever made an interim order of parental responsibility to the Minister. Assuming for the moment that parental responsibility to the Minister as an order has some content, it seems to me on reading the transcript in evidence there cannot be any reasonable or rational basis for coming to any other view than that such an order was made. On the material before me I find as a fact that such an order was made.
16 Adopting with gratitude the structure of the written outline of submissions provided by counsel for the plaintiffs, I state an overview of the legislation relative to the issue as follows. S3 of the Act defines “parental responsibility”. It does so in these terms:
- “In relation to a child or young person parental responsibility means all the duties, powers, responsibilities and authority which by law parents have in relation to their children.”
17 S69 of the legislation provides that the Children’s Court may make interim care orders. The present proceedings arise in an “interim” context. S79 bears the heading “Order allocating parental responsibility” and that section is as follows:
(1) If the Children’s Court finds that a child or young person is in need of care and protection, it may:
(a) make an order allocating the parental responsibility for the child or young person, or specific aspects of parental responsibility:
(i) to one parent to the exclusion of the other parent, or
(ii) to one or both parents and to the Minister or another person jointly, or
(iii) to another suitable person, or
(b) make an order placing the child or young person under the parental responsibility of the Minister .
(2) The specific aspects of parental responsibility that may be allocated by an order of the Children’s Court include, but are not limited to, the following:
(a) the residence of the child or young person ,
(b) contact,
(c) the education and training of the child or young
person,
(d) the religious upbringing of the child or young person,
(e) the medical treatment of the child or young
person.
(3) The Children’s Court must not make an order allocating parental responsibility unless it has given particular consideration to the principle in section 9 (d) and is satisfied that any other order would be insufficient to meet the needs of the child or young person.
(4) The Children’s Court must not make an order allocating parental responsibility for a child or young person if the order would be inconsistent with any order in relation to the child or young person made by the Supreme Court in the exercise of its jurisdiction with respect to the custody and guardianship of children. (emphasis added)
18 In the context of an order allocating parental responsibility to the Minister s81 is important as well, and it states as follows:
81(1) If the Children’s Court makes an order placing a child or young person under the parental responsibility of the Minister , the Children’s Court must determine:
(a) which aspects (if any) of parental responsibility are to be the sole responsibility of persons other than the Minister, and
(b) which aspects of parental responsibility are to be the sole responsibility of the Minister, and
(c) which aspects (if any) of parental responsibility
are to be exercised jointly by the Minister and other persons,
and the Minister may exercise parental responsibility alone or together with another person or other persons accordingly.
(2) If an order places a child or young person under the sole parental responsibility of the Minister , the Minister must, so far as is reasonably practicable, have regard to the views of the persons who had parental responsibility for the child or young person before the order was made while still recognising that the safety, welfare and well-being of the child or young person remains the paramount consideration.
(3) If aspects of parental responsibility are to be exercised jointly by the Minister and another person, either the Minister or the other person may exercise those aspects but, if they disagree concerning their exercise, the disagreement is to be resolved by order of the Children’s Court. (emphasis added)
19 It can be seen from s79(1)(b) that the Children’s Court may make an order placing the child under the parental responsibility of the Minister. Sub-s(2), on my construction of it, in circumstances where parental responsibility has been allocated to the Minister, provides that specific aspects of that allocated parental responsibility to the Minister include, “(a) the residence of the child or young person”.
20 S81(1) assumes the making of an order placing a child “under the parental responsibility of the Minister”. It then curiously, one might think, in structural terms, says that the Children’s Court must determine what aspects, if any, of parental responsibilities are to be the sole responsibility of persons other than the Minister, and which aspects of parental responsibility are to be the sole responsibility of the Minister, and which aspects are to be the responsibility jointly to be exercised by the Minister and others.
21 This on its face might seem to be inconsistent with the notion of all aspects of parental responsibility being allocated to the Minister. If there is any doubt, the concluding clause of sub-s(1) refers again to the Minister exercising parental responsibility alone. Further if there is any doubt, it is clarified by sub-s(2) which presumes an order placing a person under the sole parental responsibility of the Minister.
22 Sub-s(3) operates in the joint circumstances to which the earlier subsection referred. Sub-s(3) has an especial significance in that it expressly provides for the resolution of a disagreement concerning joint exercise by the Children’s Court. That points to the Children’s Court having jurisdiction in circumstances where parental responsibility has been allocated to the Minister jointly with another, as provided for in s81(1).
23 S86 makes provision in circumstances that if a child is subject to proceedings before the Children’s Court any party may apply to that Court to make various orders in relation to a specified subject, namely contact.
24 It was essentially part of the plaintiffs’ submissions that the peculiar status which the Minister enjoys is reinforced by s164 of the Act which bears a heading “Parental responsibility of Minister” and says:
164 The Minister is responsible for the provision of accommodation for any child or young person for whom the Minister has parental responsibility.
25 It is agreed that that section has not been proclaimed and thus can be set to one side. I would merely interpolate that if the position was otherwise its reinforcement would be limited by a clearly available distinction between the notion of mere accommodation and the notion of residence.
26 With respect, perhaps the most important recent decision in relation to this legislation is that of the Court of Appeal in this State in George v Children’s Court of New South Wales (2003) 31 Fam LR 218.
27 In one respect one argument raised in opposition to the plaintiffs’ case was said to be the operation of s15 of the Children’s Court Act. That submission can be taken as a formal one as it has been dealt with, contrary to what was advanced, by Ipp JA in George’s case (see paras [43]-[49], [138]-[139]).
28 George’s case was concerned with whether or not the Children’s Court had power to order the Director General to provide travel services, and held that it did not. In coming to that conclusion Ipp JA, with whom the other members of the Bench agreed, can be understood as having concluded the following propositions, and again I am grateful for counsel’s submissions.
29 Many of the provisions of the Act afford the Director General and the Minister discretionary powers to provide services and support, with comparatively few instances of the Court being given power to make orders in relation to such matters otherwise than by consent. The allocation of money and resources for the care and protection of children and young persons is a matter of policy, it being preferable that such decisions be made by the body vested with the administrative responsibility for the proper use of resources, and not by a court on an ad hoc basis.
30 What is in the best interests of the child would really be expected to be left to the discretion of the Minister and the Director General, having regard to limited funds allotted to the Department for the protection of children in need of care generally. The legislation provides exclusively and exhaustively for the relief the Children’s Court might order arising out of obligations imposed on the Director General and the Minister, and also imposes limitations on the power of the Court to create such relief. The Children’s Court is not empowered by any provision of the Act to order the Director General to provide support services, as that was a matter totally within the Director General’s discretion.
31 George’s case, whilst focused on the question of power vis a vis the Director General in discrete areas of travel services, provides authoritative and useful guidance in my view to the resolution of the present matter, especially by reason of his Honour’s analysis and conclusions as to authority, jurisdiction, discretion and matters of power in all entities with which that Court was concerned, which entities essentially are ones concerned with virtually all aspects of that legislation. The decision in George points to the need for close consideration and care to be taken in deciding wherein lies authority, jurisdiction, power and discretion and the like.
32 In the course of submissions before me attention was drawn to s47 of the legislation which is in the following terms:
47 The Children’s Court may, at any stage in the proceedings, make an order prohibiting any person, including a parent of a child or young person, in accordance with such terms as are specified in the order, from doing anything that could be done by the parent in carrying out his or her parental responsibility.
33 A first reading of that section might lead one to the view that it was an attractive avenue for resolving the question of whether or not the Children’s Court had power to make the order under challenge. I have been provided by way of submissions with a paper by his Honour Magistrate Crawford, Children’s Magistrate, entitled “Orders Prohibiting Acts by Parents: Section 47”, and an extract from the Parkinson Report referred to in George’s case.
34 That extract deals with a recommendation that as I understand it evolved in the enactment of s47. The learned author of the paper expresses reservations as to whether it would apply in the circumstances I am concerned with, in the following way:
- “The term ‘carrying out’ seems to imply a direct involvement between the child and the person. For this reason it seems doubtful that an order could, for example, be made against the Director General or an officer.”
35 The Parkinson Report extract also seems in its commentary to be pointing to that more personal or intimate and direct relationship that gave rise to the reservation in his Honour Magistrate Crawford’s paper.
36 Ultimately, however, the submission for the plaintiffs was that the word “person” in the section cannot be understood to include the Minister or the Director General when the overall scheme and theme of the legislation is considered, and where, by reference to various sections, for example ss82, 148 and 163, an express exclusion is enacted in that the Director General is not included in the word “parent”.
37 That exclusion conforms generally with the submission, as I understand and accept it, that the legislation might be dealing with a person, the child, young person or parent, the Director General and the Minister, and it cannot be taken that the mere use of the word “person” includes all or any combination or permutation of the variety of people enjoying different status to which parts of the Act might be attracted.
38 When one considers s79(2) and s81 and the order I have found in fact to have been made, namely that parental responsibility has been allocated to the Minister without any qualification, exception or joint responsibility, then that parental responsibility solely to be exercised by the Minister includes residence, and the Children’s Court has no jurisdiction to interfere with the exercise by the Minister of that sole responsibility which includes residence in any way, let alone by the constraint sought to be imposed by the order under challenge.
39 On my construction of the legislation and taking into account what I will describe as the important policy matters dealt with in George, the Children’s Court, having even on an interim basis allocated sole parental responsibility to the Minister, cannot derogate in any way from the Minister’s power to exercise it.
40 I have not embarked upon the consideration of the well known principles in Grassby v The Queen (1989) 168 CLR 1 and Craig v State of South Australia (1995) 184 CLR 163 relating to this kind of proceedings, and nothing has been placed before me that would trigger the exercise of the ultimate discretion analysed recently, for example, by Kirby J in Re Edward (2001) 51 NSWLR 502.
41 Accordingly, I make the declaration in paragraph 1 of the summons and quash the order as set out in paragraph 2 of the summons. I make no order as to costs.
Last Modified: 07/26/2004
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