Secretary of the Department of Human Services v A Father (a pseudonym)
[2001] VSC 231
•13 July 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 7318 of 1999
| SECRETARY OF THE DEPARTMENT OF HUMAN SERVICES | Appellant |
| v | |
| A FATHER (A PSEUDONYM) AND OTHERS | Respondents |
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JUDGE: | Nathan J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 March, 25 June 2001 | |
DATE OF JUDGMENT: | 13 July 2001 | |
CASE MAY BE CITED AS: | Secretary of the Department of Human Services v A Father (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 231 | |
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Children and Young Persons Act 1989 – Protection Applications are sui generis – Power of Children's Court to set procedures – Leave to withdraw or discontinue required – Procedural powers of specialist Courts – Judicial vs ministerial authority.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr K H Bell QC with Miss A Mendes da Costa | Solicitors for the Department of Human Services |
| For the Respondents | Mr P K Pickering |
HIS HONOUR:
Does a protective intervener, in this case the appellant, require the leave of the Children's Court to withdraw or discontinue a protection application? For the extensive reasons I shall go on to give, the answer is yes. Accordingly, this appeal and application for a Declaration must fail and be dismissed.
Identification of the Parties
The appellant is the Secretary of the Department of Human Services (the Secretary). Under the terms of the Children and Young Persons Act 1989 (the Act) she is "a protective intervener". As such she is empowered to initiate proceedings before the Children's Court to have a child placed under the care of the Department. She is the appellant by virtue of s.117 of the Act.
The first named respondent, the father, is the natural father of the third respondent, the child. The second respondent is the child’s mother. The natural parents now live apart and the father has remarried. There are a number of children born to the father and the mother but it is not necessary to delve into the sibling structure any further. However, it is pertinent to note that the numerous allegations of neglect, unsuitable behaviour and abuse, which have been made at various times, against the father all stem from anonymous complaints. None appear to have been substantiated, although investigated, nor indeed have they ever been tested to the point of adjudication.
Nature of Application
The appeal is generated from the decision of a Magistrate to require, and then grant, leave to the Secretary to withdraw a protection application for the child, and her subsequent order to strike out the application for her protection. The Secretary contends no such leave is required. As a matter of law, so it is argued, the Secretary can withdraw or discontinue a protection application without leave of the Court and as of right.
The appeal comes before me by way of the Act, s.117, which as edited reads:
" … the Attorney-General … may appeal to the Supreme Court, on a question of law, from a final order of the Court …"
Beach J has already decided that the decision to require leave to withdraw and the striking out orders were final orders as required by s.117.
Notice of Protection Application
Pursuant to s.68 of the Act the Secretary issued a Notice of Protection Application returnable before the Bendigo Children's Court. Section 68 as summarised provides:
"(1)If a protective intervener is satisfied on reasonable grounds that a child is in need of protection he or she may
(a)serve a notice directing that the child appear or be produced before the court for the hearing of a protection application; or
(b)with or without warrant take the child into safe custody.
(1A)After considering what procedure to take under sub-section (1) the intervener must record in the central register such investigation arising from the investigation.
(2)If (a protection application) has been taken out a protective intervener must as soon as possible make an application to the court and give a copy of the application to
(a)the child's parents; and
(b)the child if he or she is above 12."
The protection application in this case recites as its grounds:
(1)That the child had suffered or is likely to suffer significant harm as a result of physical injury and the child's parents have not protected or at unlikely to protect the child from harm of that type; and
(2)The child has suffered or is likely to suffer emotional or psychological harm or such a kind that the child's emotional or intellectual development is, or is likely to be, significantly damaged and the child's parents have not protected, or are unlikely to protect, the child from harm of that type.
Notices are sui generis
In the section of the application, recited as "Notice to Parents and Child" the child is directed – "You must come for hearing of this application" and the parents are directed "If your child is in your custody the child must appear or be produced before the Court for the hearing of this application".
I note that the terms of a Notice of Protection Application are prescriptive viz "You must appear on the recited date for hearing". A Notice is in the nature of a summons. Further, should the parents or the child decide to resist the application or defend the allegations, there is no requirement either under the notice, or pursuant to the Act, that, that they must give notice of intention to defend. The procedure is not similar to that followed by Magistrates' Court in its civil jurisdiction, which requires a notice to defend or at least some indirection that the claim of the complainant will be resisted.
Furthermore, the grounds for notices as enumerated in s.63 (ibid), raise truly terrible allegations against parents. It is difficult to imagine anything worse which could be said of a parent, other than failure to protect their own children from harm, and that as a result a child has suffered physical, emotional or psychological damage and is likely to continue to do so. In my view it is highly relevant to refer to the heinousness of the conduct, which is, by way of such Notices laid at the feet of parents. The conduct here alleged, and by such Notices is of a significantly different order than that which arises in most civil claims, for example, negligence in driving on the highway or failing to perform the terms of a contract. The conduct here alleged, goes to the very substance of a parent's responsibilities and duties. It goes to the very integrity of family life, because the consequences of the grounds being established, is that the child may be removed from the parents and taken into custody.
No civil claim heard by the courts results in one or other of the parties being uplifted and taken into custody. It is, of course, trite to observe that there will be many circumstances where removal of the children from incompetent, abusive or exploitative parents will be in their best interests. It is equally trite to note that the powers of the Secretary to compulsorily remove children from parents would amount to kidnap if done by an ordinary citizen.
For those reasons Notices for Protection Applications must be considered sui generis. The ordinary civil procedure rules can have little relevance to them.
Scheme of the Act
The Act's purposes are set out in s.1, which establish the Children's Court as a specialist court to deal with matters relating to children and to provide for their protection. Part 3 deals with the protection of children and Division 2 concerns those children in need of protection. It is s.63 which recites the circumstances required to render a child in need of protection. In this case the notice of protection application rehearses Parts (c) and (e) of that section.
Pursuant to s.64, any person who believes on reasonable grounds that a child is in need of protection may notify a protective intervener of that belief. Note the breadth of that wording; "any person", it is not constrained to blood relations or social workers. The Secretary is a protective intervener. Section 64 recites the conditions relating to the mandatory reporting to a protective intervener, by persons likely to come in contact with vulnerable children, such as social workers and teachers.
Section 66 obliges a protective intervener to investigate the subject matter of a notification as soon as possible after receiving it. The investigation must proceed in a way that will best ensure the safety and wellbeing of the child. Information gathered as a result is immunised from disclosure, but the parents must be informed about any information which may be used for the purposes of any subsequent protection application. I note the enforced anonymity conferred upon people who support a protection application does allow the malicious, as well as the concerned, to have direct access to a protective intervener.
Should the results of the investigation result in the protective intervener being satisfied on reasonable grounds that a protection application should be made, s.68 is enlivened. I edit its provisions as follows:
" If a protective intervener is satisfied on reasonable grounds that a child is in need of protection he or she may serve a notice … directing that the child appear or be produced before the Court for the hearing of a protection application or with or without warrant take the child into safe custody pending the hearing of a protection application. The protective intervener must as soon as possible make a protection application to the Court and give a copy to the child's parents and the child."
Part 2 of the Act establishes the Children's Court. Division 3 deals with its procedure and s.19 requires its proceedings to be heard in open court viz –
" Proceedings in the Court … are to be conducted in open court. There is provision for holding proceedings in camera. Rights of audience and representation for both children and parents are established pursuant to s.20 and a child must be legally represented where a protection application is before the Court."
Section 26 restricts the publication of the Court's proceedings insofar as identification of the parties or its venue is not permissible, but otherwise the proceedings are reportable. There is no need for me to detail the options available should a protection order be made, sufficient to say the placements usurp the ordinary responsibilities and duties of parents.
The Children's Court is invested with all the powers and jurisdiction of a Magistrates' Court. Section 24 as edited reads:
" The Court has and may exercise in relation to all matters all of the powers and authorities that the Magistrates' Court has in relation to the matters over which it has jurisdiction.
And the Magistrates' Court Act 1989 except Part 5 with the regulations made under it apply with any necessary modifications unless the contrary intention appears." (my emphasis supra)
Magistrates' Court Rules
Rule 4.09 of the Magistrates' Court Rules provides –
" A complaint … may be discontinued and a notice of defence may be withdrawn at any time … without the leave of the Court."
sub-rule (2) provides:
"Notice in writing of discontinuance or withdrawal must be filed and served on each party."
In this case the Secretary announced her intention to withdraw on the morning of the hearing. No prior notice was given.
However, the Act, s.24(2), specifically says that Part 5 of the Magistrates' Court Act does not apply. Part 5 relates to civil proceedings and is thus excluded by s.24(2). Furthermore, the Magistrates' Court Rules relate to "complaints", a clear reference to the civil jurisdiction of that Court. As I have already observed, a protection application is in the nature of a summons. It compels personal appearance and results not in the settlement of a dispute between competing citizens, but the possible uplifting of a child from its parents by an organ of the State.
As the purposes of the Act declare the Children's Court a specialist court, it is not a court of general jurisdiction. Therefore, its rules and procedures must be promulgated to meet its specialist requirements. Although assistance might be gained from regarding the rules of court of other jurisdictions, the paramount purpose of the Act, i.e. protection to children in need, must be the guiding principle. Therefore, all its rules of procedures must be tailored to this end.
A protection application is simply not analogous to a civil complaint in the Magistrates' Court. Accordingly, the rules relating thereto cannot apply to the Children's Court Act, nor could they be modified to do so. This result entrenches my view that child protection applications are sui generis. The Children's Court can set its own rules of procedure to suit its specialist needs.
Core Question
This conclusion reveals the core of the dispute and exposes the legal question to be settled. Does a protective intervener need the leave of the Court to withdraw or discontinue a protection application once it has been filed and served? On the one hand the Secretary contends withdrawal or discontinuance is a ministerial act which is not amenable to the Court's jurisdiction. On the other, the Attorney-General appearing for the Secretary, contends that once the Secretary invokes the Court's jurisdiction, she becomes subject to it, and to such rules of procedure as the Court may decide. If the Court decides that in governing itself, protection applications can only be withdrawn by way of leave, then the Minister must submit, like any other litigant, to that rule of procedure.
In this case the Secretary, apparently following the advice of some of her staff, decided to make a protection application to the Court. Later, and apparently after further investigation, the Secretary decided to withdraw the application and attempted to do when the matter was called on for hearing. Counsel for the mother and child, the second and third respondents, objected to the proceedings being withdrawn. The hearing proceeded for two days, and the Magistrate ruled that leave to the intervener to withdraw was required. After an adjournment the matter was apparently resolved and counsel for the mother and child withdrew their objection to the matter being withdrawn. However, the Magistrate continued to abide by her ruling that leave to withdraw was required. Eventually an application by the Secretary to do so was made and leave was granted. It is, as previously recited, the contention of the intervener that no such leave is required as a matter of law. To that core issue I now return.
The Authorities
The practice and procedure in the Children's Court came to the attention of the Appeal Division of this Court in 1992, M v M (1993) 1 VR 391. An officer of the Department now known as Human Services made protection applications in respect of 81 children of the religious sect known as The Children of God. The presiding magistrate determined that all 81 applications could be heard together. That decision became the subject of judicial review, partly on the basis that the Children's Court had no power to order the joint hearing of so many protection applications. In my view the head note correctly states the ratio of the case, viz—
" where as here the enabling statute or rules or regulations made thereunder are silent as to procedural matters, an inferior Court has power to control its own procedure. The power of the Children's Court to control its procedure enables it to hear protection applications concurrently."
Brooking J, as he then was, the presiding judge, said (p 393):
" so it has been said that where the enabling statute or rules or regulations lawfully made thereunder are silent as to procedural matters an inferior Court has power to control its procedures and that unless restricted by statute Magistrates Courts guided where necessary by higher Courts are entitled to develop there own practice and procedure and adapt it to contemporary needs."
He referred to Neale v Colquhoun (1944) SASR 119 and J v Lieschke (1986-7) 162 CLR 447, Sparks v Bolotti (1981) WAR 65 at 69, Parsons v Martin (1984) 58 ALR 395 at 401 and Chief Constable of Norfolk v Clayton (1983) 2 AC 473 at 488-9.
It is pertinent to rehearse part of my own judgment in M v M case (page 403).
" It is correct however in my view, that the nature of the protection orders needs to be examined in the context of the Act. The power to be exercised by this court is to some extent influenced by the legislative framework which prompts the remedy sought."
I also noted that the Act was addressed to the welfare of children generally in the context of the family being the basic unit of our society. Those considerations are relevant to this case.
Mr Bell for the Secretary argued that M v M was not relevant here and hence was of no authority. He contended that the Minister's decision to withdraw was a ministerial act outside the purview of the Court, and hence not amenable to judicial intervention. He did however, concede that the Children's Court does possess an implied power to control its own procedures. That concession was prompted by M v M, and also Guss v the Magistrates' Court of Victoria (1992) 2 VR 113 and Grasby v R (1989) 168 CLR 1.
The decision in Guss, pronounced by Batt J (also as he then was), concerned a Magistrate's Court order which required the plaintiff to obtain leave of the Court before making further applications to set aside a default judgment. Batt J said this: -
"All Courts - - have control over their own proceedings and may devise a practice for regulating those proceedings that is not inconsistent with their governing Act or what is called in the earlier full Court decisions 'the decent administrative of justice' - - I see no objection to the existence of the power (that is to require leave) in the face of the fact that the practice is new."
He went on to observe:
" the order under consideration did not in my view extend the jurisdiction of the Magistrate's Court which is impermissible, (Jackson v Sterling Industries (1987) 162 CLR 612), or go beyond regulation of procedure, as the full Court of the Federal Court of Australia in Parsons v Martin held the grant of letters of request to courts of countries did. In my view the order here is within the latter part of the following statement of principle by the Federal Court at page 241 namely: in our opinion a Court exercising jurisdiction conferred by statute has powers expressly or by implication conferred by the legislation which governs it. This is a matter of statutory construction. We are of opinion also that it has in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred."
Parsons v Martin (1984) 5 FCR 235, a decision of the full bench of the Federal Court does not assist the appellant. It was held unanimously that a Court of Petty Sessions does not have inherent, or any other power, to issue letters of request addressed to the courts of other countries. Such a letter goes beyond the mere regulation by the Court of its own procedure and is an attempt to exercise jurisdiction not only outside its own territory, but outside the terms of its enabling statute.
None of those considerations are present in the case before me. It could not be contended and certainly not sustained, that a Court which requires leave, before proceedings brought before it, can be withdrawn or discontinued, is exercising jurisdiction beyond regulating its own affairs. Leave to withdraw is no way analogous to a letter of request addressed to a foreign court and nothing more need be said about this case. The proposition for which it does stand, for which there is no contest, is that a court, in exercising its implied power to regulate its procedures cannot, under that guise, take onto itself substantive jurisdiction beyond that for which it was enabled.
J v Lieschke (1986-7) 162 CLR 447, held that in proceedings relating to neglected children, the parents have, as a principle of natural justice, the right to be heard. Twist v Randwick Municipal Council (1976) 136 CLR 106 was applied. Brennan J, as he then was, did not disavow the opinion of Kirby P expressed in the judgment under appeal from the NSW Court of Appeal, which examined the history of child welfare legislation in extenso, where he said (p 77):
" regard must be had to the general nature of the proceeding involving a child in neglect cases. It has been pointed out on a number of occasions, that this proceeding is not the normal adversary litigation inter partes. Nor is it criminal in nature. Instead, it is a wide ranging inquiry with special characteristics that distinguish it either from criminal proceedings or from the normal features of civil adversary proceedings".
But Brennan J did not agree with Kirby P that there had been a merger of the protection and criminal jurisdictions. I am of course, bound by this finding but it serves to entrench my view that protection applications must be regarded as sui generis.
Secretary's Contentions
Mr Bell contended the authorities supported his proposition that the power to regulate procedures extended only to 'adjectival matters' rather than substantive ones. He said that the implied power did not extend to permitting the exercise of a power beyond jurisdiction which the requirement for leave to withdraw would be. He reiterated as I have done, his basic contention that the decision to withdraw a protection application was merely an administrative one, a decision making power which he said was statutory invested in the Secretary and not in the Courts.
In support of his argument that the Secretary did not require leave, Mr Bell discerned from the Act that which he said was a distribution of powers. He submitted that its provision disclosed the legislature had distributed the powers in respect of protection applications between the Secretary and the Children's Court and assigned different functions to them. He said the Secretary had the responsibility for the reception and investigation of notifications, and for the determination of the issue, whether or not an application for protection should be made to the Court. On this basis he said that whether or not an application should be pursued or continued was of a like character and also a decision solely to be made by the Secretary. On the other hand, so he said, the Children's Court had the responsibility to determine on the facts presented before it, whether or not protection orders should be made. Therefore, so he contended, when the Children's Court required leave to withdraw or discontinue, it usurped the functions consigned by the legislation to the Secretary and hence was an exercise of jurisdiction beyond power.
To support his contentions Mr Bell referred to the Act, s.122, which provides an avenue for a child, or a parent, to approach the Victorian Civil and Administrative Tribunal. This enables a review of a decision contained in a case plan or a decision relating to the recording of information. He said that the section was broad enough to include a decision by the Secretary either to make or not make a protection application or to discontinue or withdraw one once such an application had been made. He contended that the fact the Tribunal possesses this jurisdiction, suggests it was the intention of the legislature such matters were not to be determined by the Court.
He added as an addendum a convenience argument, namely it would be administratively difficult for the Secretary to change course and display the flexibility required by this jurisdiction, if, having instituted proceedings, a Court order was required to terminate them. It was put that the application for leave could itself become a litigious process and ventilate matters of contention that would be best left unheard or else otherwise unduly inconvenience the Secretary and the parties.
None of these arguments are persuasive and all of them are wrong for the following reasons.
Effect of the Authorities
M v M, which binds me, is clear authority for the proposition that the Court is seized of a jurisdiction to regulate the manner by which protection applications are processed before it. In that case, it was the concurrent hearing of numerous applications. It follows that a rule of process which requires applications to be withdrawn or continued by leave, and not as of right, is also a step in the way in which protection applications are processed before the Court.
The highly persuasive and succinct statement of principle pronounced by the full court of the Federal Court, cannot and must not be ignored. Parsons v Martin considered the interface between a regulatory power and the exercise of jurisdiction beyond power. That an inferior court has the authority to set its own rules of procedure was there uncontested. That case concerned the attempted reach of the jurisdiction of the Court of Petty Session into foreign countries and ruled that such a reach was a usurpation of judicial authority. In this case, the Children's Court has become seized of the protection applications. They are processes before it, initiated by the Secretary invoking the Court's power and jurisdiction. The Secretary is not in a position to turn on and off the Court's authority once applications are launched, as might be confluent with the advice of her staff. The Secretary, once an application is issued, has stepped outside the parameters of her authority and submitted to that of another, namely judicial determination of the merits or demerits of that application by the Children's Court.
I find the decision in Lieschke to be highly persuasive. Not only are its facts similar, in respect of similar legislation, but the judgments by eminent judges come to grips with the philosophical foundation of protection applications. Kirby P, as he then was, concluded, protection applications are not to be considered in the same light as the civil jurisdiction of the courts, on this point the appealed judgments impliedly concur. I consider that protection applications before the Children's Court cannot be classified as either civil or criminal proceedings, but must be examined in the light of their legislative context and the misfortunes they are designed to remedy. They must be assessed in the legislative context which defines the specialist jurisdiction.
The power of the Victorian Civil and Administrative Tribunal to review certain decisions of the Secretary, does not indicate that the Courts' power to regulate its procedures have been terminated or foreshortened. The power to refer for review is incidental to the powers relating to the formulation of case plans for protected children or decisions relating to the recording of information. In my view, it cannot be suggested that such power has extinguished or abrogated the power of the Children's Court to set its own procedures.
Decision
The Act bifurcates its functions. To establish the Children's Court as a specialist court and the other to provide for the protection of children. The Secretary is invested with the administrative functions of receiving notifications of complaints, assessing and maintaining records of them. However, once a protection application has been made, then the jurisdiction of the court is enlivened. It is not for the Secretary to resolve the matters set out in the application, that responsibility is the Courts. The Secretary's functions become cognate once she decides whether or not to pursue the making of an application. The Court is not an appendage to the Secretary's ministerial duties. The very function of the Court is to assess and to deliberate upon the Secretary's application that the children are in need of protection. Adjudication of that issue must proceed before the Court. The Court has power to decide how that shall best be accomplished. Once the judicial process has been enlivened in this specialist jurisdiction, then it requires a judicial process to bring it to an end. If the Court decides as a matter of process that leave is required, then leave is required.
Mr Bell's contention that the Court has usurped the Secretary's ministerial function is in fact the obverse of what has happened here. The Secretary has argued that she should be able to usurp the Court's judicial function in deciding whether a case should or should not proceed.
In my view, 'the decent administration' of justice demands it should be the Court which decides whether a case is withdrawn or discontinued. Allegations made in the grounds for protection applications generally and particularly so here, raise the most serious and dreadful assertions against parents. If they were able to be withdrawn or discontinued by the Secretary at will, the matters would remain unresolved and the allegations left hanging throughout the lifetime of both parents and children. It is only proper that they be disposed of by way of judicial order one way or the other. There will be many cases where the protective intervener does not offer any evidence in support of the application. In which case, the parent is entitled to have the matter struck out, thereby disposing finally of the matter and being vindicated or otherwise.
The law now encompasses many types of protection applications. These are Intervention Orders pursuant to the Crimes (Family Violence) Act and similar provisions in the various pieces of gaming legislation. That some such applications are born out of spite and malice is ,unfortunately, not unknown. The falsely vilified are entitled to vindication, just as much as the vulnerable are entitled to protection. In the absence of express legislative or regulatory provision, a Court dealing with such applications has the power to set the procedures by which they can be dispatched.
The Act immunises the identity of complainants from public disclosure and although there are some provisions protecting the identity of children and parents, processes at the Children's' Court are to be held in public. There will be many instances where the nature of the proceedings, the allegations made and the various refutations or otherwise, will be ventilated and known to the families of both children and parents. Should an allegation be made, and pursued without foundation, then that parent is entitled to have the public satisfaction of having the case dismissed by the Court. This appears to be the position of the father in the instant case. More than five sets of allegations were levied against him by an anonymous complainant. All were investigated and found to be without substance. A further set of allegations were made and as a result thereof the Secretary decided to institute a protection application. The children were uplifted, taken from their schools and accommodated in a place far distant from their home. The Secretary, upon further investigation, decided not to pursue the protection application already made. The mother and child initially resisted the Secretary's application but ultimately did agree. The disgruntled, or it may be, falsely accused parent, is entitled to judicial vindication. Justice demands that this be delivered by the Court, not by the administrative fiat of the Secretary. The Court's jurisdiction, once having been invoked, can only be terminated, or the proceedings withdrawn or discontinued by its leave, if the Court has decided, as a matter of procedure, that leave is required.
The Court is a specialist court, it is entitled to set its specialist rules of procedures in the absence of direct legislative provision and so long as those rules are congruent that the objectives set out in the Act and 'the decent administration of justice'.
This application for declarations by way of appeal, to the contrary effect must fail and the matter dismissed. Then there would be no order for costs.
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