Thurgood v Director of Australian Legal Aid Office

[1984] FCA 379

Re: HAROLD ALBERT THURGOOD
And: DIRECTOR OF THE AUSTRALIAN LEGAL AID OFFICE
G306 of 1984
No. 56 ALR 565
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.

CATCHWORDS

Administrative Law - Custody order made by Family Court - Application for legal aid to seek prohibition in High Court - Application refused - Whether constructive failure to consider application - Merit of foreshadowed grounds of application for prohibition - Decision to refuse application not a decision "under an enactment" - Availability of relief under s.39B of Judiciary Act.

Family Law Act ss.4, 39, 64, 65

Family Law Regulations 36, 116

Administrative Decisions (Judicial Review) Act 1977 ss.3, 5

Judiciary Act 1903 s.39B

HEARING

SYDNEY

#DATE 19:11:1984

ORDER

Application dismissed.

Order that the applicant pay to the respondent his costs of the Application.

JUDGE1

This is an Application, under s.5 of the Administrative Decisions (Judicial Review) Act 1977, brought by Harold Albert Thurgood on behalf of his two children, Louise Charlotte Thurgood, aged 12 years, and Paul Ty Thurgood, aged 10 years. The Application was one of several Applications, brought against various public officers, which were filed in reliance upon that Act or which sought prerogative writs, mandamus or prohibition, and which were brought pursuant to s.39B of the Judiciary Act 1903. During the joint hearing the parties agreed that the only matter which needed to proceed to determination was the subject Application - the other Applications being dismissed by consent - but that, in relation to that Application, particular affidavits which were filed in the other Applications could be relied upon.

The marriage between Mr Thurgood and his former wife, the mother of the two children, has been dissolved by a decree of the Family Court of Australia. Mrs Thurgood applied for custody of the children. That application was pending during the year 1981. A question arose whether the Court should make an order, pursuant to s.65 of the Family Law Act 1975, for separate representation of the children. As that section then stood it read:

"Where, in proceedings with respect to the custody, guardianship or maintenance of, or access to, a child or the marriage, it appears to the court that the child ought to be separately represented, the court may, of its own motion, or on the application of the child or of an organisation concerned with the welfare of children or of any other person, order that the child be separately represented, and the court may make such other order as it thinks necessary for the purpose of securing such separate representation."

Initially, an order for separate representation was refused and, consequentially, the Australian Legal Aid Office declined to grant to the children legal aid to permit their separate representation in the custody proceedings. However, on 27 January 1982 Pawley J ordered that the two children be separately represented and directed that the Australian Legal Aid Office be requested to arrange representation. By letter dated 23 February 1982 the Deputy Director of the Australian Legal Aid Office in Sydney wrote a letter to the two children indicating that legal aid had been granted to them and nominating a solicitor who would be acting on their behalf. This solicitor had not previously been involved in the proceedings.

The custody application apparently proceeded to a final hearing during the year 1982; the evidence does not disclose any date. Sole custody of the two children was given to the mother. By letter dated 16 March 1983, the children wrote to the Deputy Director of the Australian Legal Aid Office complaining of the result - I am told that they had wished the Court to make an order for joint custody - and asking for the assignment of a different solicitor. This letter was received by the Deputy Director, who sought a comment from the solicitor, but it was not acknowledged to the children. The solicitor replied to the Deputy Director on 8 April 1983. He said, inter alia, that he had spoken by telephone to Louise but that, in accordance with recommendations made by the Family Court counsellor, the children were not seen during the course of the proceedings. I infer from this statement that the solicitor took no active part in the proceedings and that he did not have any detailed discussion with the children regarding their wishes. I find it strange that the solicitor should have allowed the view of the counsellor to frustrate the fulfillment of the purpose of Pawley J in making the order for separate representation.

By letter dated 31 May 1983 the two children wrote to the Chief Justice of the High Court of Australia, Sir Harry Gibbs, setting out their view of the matter and arguing, in a manner remarkably articulate for their years, that the relevant provisions of the Family Law Act were unconstitutional. That letter was referred by Sir Harry's associate to the Attorney-General. It had an indirect result. On 24 October 1983 the Deputy Director of the Australian Legal Aid Office wrote to the two children a letter which commenced by referring to a request he had received from the office of the Deputy Ombudsman in Canberra regarding their separate representation. He went on:

"Having considered the contents of your letter dated 31 May 1983, addressed to the Chief Judge (sic) of the High Court, it seems that you may already know a legal practitioner who would be willing to act as your separate representative in future.

If this is the case, please will you forward me the name and address of the solicitor concerned and I will confirm to your new solicitor that the Australian Legal Aid Office will remain responsible for the payment of your fees in future in accordance with the prescribed scales and conditions relating to work referred from this office."

The children have made no response to this letter. No solicitor has been nominated to the Australian Legal Aid Office and no steps have been taken by them, or by any other person on their behalf, to arrange for advice to be given to them in respect of any action which may be available to them to vary the current custody order. Whatever may have been the earlier position it is clearly now open to the children to make an application for variation. Following an amendment made by Act No. 72 of 1983, which took effect on 25 November 1983, there is included within the definition of "matrimonial clause" in s.4 of the Family Law Act:

"(cc) proceedings by or on behalf of a child of a marriage against one or both of the parties to the marriage with respect to the custody, guardianship or maintenance of, or access to, the child".

Section 39 confers upon the Family Court jurisdiction to determine a 'matrimonial cause'. An existing custody order may be discharged or varied at any time: see s.64 (7) of the Family Law Act.

Although there was no evidence as to the reason for the failure of the children to take advantage of the current attitude of the Australian Legal Aid Office, I was informed by Mr Thurgood from the bar table - he appeared in person - that the reason was the requirements of Reg 36(4) and (5) of the Family Law Regulations requiring certain matters to be set out on affidavit, in respect of an application for custody, read with the limitation in Reg 116(6) providing that:

"Except with the prior leave of the court in which proceedings under the Act are pending or are being heard, an affidavit made by a child under the age of 18 years shall not be filed for the purpose of those proceedings".

It was said by Mr Thurgood that this latter provision effectively denies to children under the age of 18 years the opportunity of bringing proceedings in respect of their custody since they are unable to comply with the requirements of Reg 36(4) and (5). The manner of its exercise of the discretion conferred by Reg 116(6) is entirely a matter for the Family Court; but it seems to me that those advising the children do a disservice to that Court in assuming, as they do, that the Family Court would allow the legislative intention demonstrated by the insertion into the definition of "matrimonial cause" of para (cc) to be frustrated by the limitations imposed by the Regulations. There would appear to be no difficulty about an application brought by or on behalf of a child being supported by an affidavit sworn by an adult, supplemented as needs be by an affidavit of the child filed pursuant to leave granted under Reg 116(6).

However, this is, for the purposes of the present application, merely background. The effect of the perceived problem was that Mr Thurgood, on behalf of the two children, determined to mount a constitutional challenge to these provisions of the Family Law Act pursuant to which sole custody of the children had been granted to his former wife. By application dated 19 April 1984 made to the Australian Legal Aid Office Mr Thurgood sought legal aid to enable him to take proceedings in the High Court of Australia, on behalf of the two children, for a writ of prohibition in relation to the order for custody. The application included a supporting statement signed by the two children indicating a desire that their father should act as their next friend in the High Court. Two grounds of the proposed application were specified: that two named judges of the Family Court, who had apparently dealt with the custody application at various interlocutory stages, had denied the children a right to be heard, contrary to the requirements of natural justice, and that the Commonwealth Parliament lacked power to legislate to authorise the making of a custody order in respect of the children.

On 3 May 1984 Mr Thurgood wrote to the Deputy Director of the Australian Legal Aid Office in Sydney enclosing certain documents and indicating that unless the application for legal aid was approved within the next ten days he would make an appropriate judicial application. The letter was acknowledged on 9 May 1984 with the information that it had been referred to the Central Office for determination. By letter dated 23 May 1984 the Acting Director of the Office wrote to Mr Thurgood as follows:

"Your application for legal aid in the matter of a High Court Application for Writ of Prohibition on behalf of Louise and Ty Thurgood has been carefully considered and the application has been refused on the grounds that there are insufficient merits disclosed".

The Application before me is made under s.5 of the Administrative Decisions (Judicial Review) Act 1977 in respect of the decision of the respondent "not to provide legal assistance to him, as the 'next friend' of Louise Charlotte Thurgood and (Paul) Ty Thurgood, to permit them to apply for a Writ of Prohibition, under s.75(v) of the Commonwealth of Australia Consitution Act in respect of the sole custody order, under s.64(1)(c) of the Commonwealth Family Law Act 1975 over them". The Application identifies three bases for the relief intended to be sought in the High Court: that the children were stopped from applying for separate legal representation under s.65 of the Family Law Act by the effect of Regs 36(4) and 116(6) of the Family Law Regulations; that two judges of the Family Court denied the children any right to be heard or to appear as parties, in breach of the requirements of natural justice and therefore in excess of their jurisdiction, and that s.64(1)(c) of the Family Law Act is beyond power in providing for the making of a custody order over the children at a time "when they were no longer 'infants' at law".

The Application, as framed, runs into an immediate difficulty. The Administrative Decisions (Judicial Review) Act provides for applications to the Court only in respect of "a decision to which this Act applies". That phrase is defined by s.3 of that Act as meaning "a decision of an administrative character made, proposed to be made, or required to be made as the case may be . . . under an enactment, other than . . ." . There is no enactment providing for the constitution or the manner of operation of the Australian Legal Aid Office. The Office was established pursuant to a Directive by the then Attorney-General of 6 September 1973 in order "to provide a service of legal advice and assistance, including assistance in litigation, in co-operation with community organisations, referral services, existing legal aid schemes and the private legal profession". I was informed that the Directive continues to govern the operation of the Office, the staff of the Office being members of the public service attached to the Department of the Attorney-General. Under those circumstances it is submitted by counsel for the respondent that there is no relevant "enactment" so that the decision of the respondent to refuse legal aid is not a decision to which the Act applies. That submission appears to be correct. However, counsel conceded that the recent addition of s.39B to the Judiciary Act 1903 deprived this point of practical significance. That section adds to the original jurisdiction of this Court "jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth". The respondent is, of course, an officer of the Commonwealth. Counsel readily acknowledged that, in a proper case, the Court could issue a writ of mandamus to compel consideration according to law of any application made to the Director for legal assistance and that, if the applicant was entitled to relief, it would be proper to permit an appropriate amendment of the Application. Without, at that stage, requiring any formal amendment I heard argument upon the question of substance: whether it is shown that the Director has failed to give proper consideration to the application for legal assistance dated 19 April 1984 in relation to the projected proceedings in the High Court.

It is clear, and Mr Thurgood did not contend to the contrary, that the Director has given actual consideration to the application. The application, together with the supporting material, was received, acknowledged and referred to the Central Office for determination. The letter of 23 May 1984 announces a decision to refuse the application on the ground that there are insufficient merits disclosed. Under those circumstances the only conceivable basis for a writ of mandamus would be a constructive failure to consider the application; an argument that the Director, while purporting to consider the application on its merits, has failed to do so. The relevant principle was referred to by three members of the High Court (Rich, Dixon and McTiernan JJ) in The King v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at pp 242-243:

"In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the enquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void. But the prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal's decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness of incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies".

There may, of course, be cases where the prosecutor is able to show not merely that the decision was wrong but that it was so unreasonable as not to be open to the decision maker. As Latham CJ said in The King v Connell; ex parte The Hetton Bellbird Colleries Ltd (1944) 69 CLR 407 at p 430:

"Where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts".

See also Parramatta City Council v Pestell (1972) 128 CLR 305.

Counsel for the respondent submitted that the decision announced by the client betrayed no evidence of a legal defect, as referred to in Bott, and was not unreasonable, in the sense referred to in Connell. Indeed, counsel went further and submitted argument in relation to each of the grounds for prohibition referred to in the Application to justify the proposition that the decision made was not merely defensible but was correct. In relation to the first foreshadowed ground for mandamus counsel submitted that the provisions of Reg 36 were irrelevant to any application for separate representation under s. 65 of the Family Law Act and that, because of the reservation of a discretion in the Family Court, the combination of Reg 36(4) and 116(6) would not preclude the proper presentation to that Court of evidence in support of an application made by the children for a variation of the present custody order. He pointed out that there were no presently pending proceedings in the Family Court and that it would be open to the children to institute proceedings for variation as they may be advised without the necessity to obtain prohibition. In respect of the second matter, separate representation under s.65, counsel contended that the proper form of relief - in relation to a live question - would be mandamus rather than prohibition but that no relief would be granted in respect of the early rulings on the matter of separate representation having regard to the fact that the most recent order, in respect of s. 65, was the decision of Pawley J granting the application for separate representation. The earlier refusals of separate representation have no continuing effect. In relation to the third matter, the constitutional question, s.64(1)(c) of the Family Law Act provides:

"64(1) In proceedings with respect to the custody, guardianship or welfare of, or access to, a child of a marriage -

(a) the court shall regard the welfare of the child as the paramount consideration;

(b) . . .

(ba) . . .

(bb) . . .

(c) subject to paragraph (a), the court may make such order in respect of those matters as it thinks proper, including an order until further order".

The Act uses the word "child" to refer to a person who has not yet attained the age of 18 years: see for example s. 63. The constitutional argument sought to be put on behalf of the children refers to the fact that s.51(xii) of the Commonwealth of Australia Constitution empowers the Parliament to make laws with respect to:

"Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants."

The suggestion is put that the word "infants" is apt to refer only to very young children, perhaps up to the age of seven years. It follows, so it is said, that to the extent that s.64(1)(c) purports to confer upon the Family Court jurisdiction to make a custody order in respect of a child exceeding seven years the legislation is beyond the power of the Commonwealth and, therefore, the present order is invalid. Counsel for the respondent accepts that, in popular parlance, the word "infants" is generally used to refer only to very young children but he points out that, over several centuries, the legal connotation of the word has extended to all persons who have yet to attain their majority, that is, all persons who are not legally adult. The word is used in this sense in Coke's First Institute (published 1628) at pp 170-171, in Blackstone's Commentaries on the Laws of England (published 1765) Book I, Chapter XVII at p 463 and in Morgan v Thorne (1841) 7 M & W 400 at p 408; 151 ER 821 at p 825). More significantly, he referred to two decisions in the High Court in relation to the meaning of infancy at the time at which the Constitution was drafted. In Attorney-General for New South Wales v Brewery Employees Union of New South Wales (1908) 6 CLR 469 at p 602 Higgins J referred to placitum (xxii) in asking whether the Federal Parliament was "bound forever to the present meaning of infancy, as ending at 21?". In King v Jones (1972) 128 CLR 21 the High Court was concerned with the meaning of the words "adult person" in s.41 of the Constitution. A number of members of the Court contrasted that description with the description of a person as an infant. At p 239 Barwick CJ said:

"A person was adult in the law in 1900, in my opinion, when he or she was of full age. Until that point of time he or she was in law an infant in contrast to being an adult. An instance of the grant of legislative power to the Parliament by reference to the contrasting concept of infancy may be seen in s.51 (xxii)."

Menzies J at pp 245 and 246, Gibbs J, at p 264, and Stephen J at pp 268-269 each spoke to similar effect. In the light of the history of the use of the word "infant" in law and, in particular, the views expressed in the High Court as to its meaning in the year 1900 and in the context of s.51 (xxii) it would be most surprising if the High Court were to accept the submission of the applicant that the word should now be accorded a narrower meaning, one confined to very young children.

Mr Thurgood advanced another ground for constitutional invalidity, namely that the provisions empowering the making of a sole custody order offend against the religious commandment that children shall honour both their father and their mother and are therefore in contravention of s.116 of the Commonwealth Constitution. I refrain from entering into the theological issues raised by that argument but observe that the decision of the High Court in Attorney-General (Vic); ex rel. Black v Commonwealth (1981) 146 CLR 556 gives no support for such a sweeping effect of s.116.

It is necessary for me to say no more than that the applicant has failed to demonstrate that the decision of the Director to refuse legal aid because of the insufficient merit of the case was a decision which no reasonable man properly directing himself could in the circumstances have made. There is no other argued basis of invalidity and none appears. The Director has not been shown to have failed to give to the application proper consideration so that, even if the necessary amendments to the Application were made, a writ of mandamus would be refused.

The application should be dismissed with costs.