Department of Communities v LE and Ors [2011] QChC 4

CHILDRENS COURT OF QUEENSLAND CITATION: Department of Communities v LE and Ors [2011] QChC 4 PARTIES: DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES (Appellant) v LE (First Respondent) JT (Second Respondent) FILE NO/S: 208 of 2010 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Children’s Court Pormpuraaw DELIVERED ON: 17 June 2011 DELIVERED AT: Cairns HEARING DATE: 24 May 2011 JUDGE: Harrison DCJ ORDER: 1. That the appeal be allowed. 2. That in lieu of the order originally made by the learned Magistrate that the following order be substituted namely –that the subject child be placed in the temporary custody of the chief executive until 24 June 2011. 3. That any of the parties have liberty to apply on the giving of three days notice to the other parties. CATCHWORDS: Whether the Children’s Court has power to attach conditions to custody orders made under s 61(d)(ii) of Child Protection Act 1999. COUNSEL: Selfridge F (Department of Communities) Benson C (First Respondent) Byles SJ (solicitor for the Second Respondent) SOLICITORS: Department of Communities for the Applicant Queensland Indigenous Family Violence Legal Service for the First Respondent Aboriginal and Torres Strait Islander Legal Service for the Second Respondent -- 1 of 8 -- 2 [1] The Director General Department of Communities appeals against a decision of the Children’s Court at Pormpuraaw on 22 August 2010 to make a child protection order in respect of the subject child under the provisions of s 61(d)(ii) of the Child Protection Act 1999 (‘the Act’). [2] In making the order the learned Magistrate imposed two conditions, namely: 1. that the child reside in the safe house at Pormpuraaw until; 2. a suitable kinship carer, as approved by the Department of Communities (Child Safety), is located in Pormpuraaw and the child resides with that kinship carer in Pormpuraaw until the child protection order expires. [3] The order was made for a period of 12 months. [4] The basis of the appeal is that the learned Magistrate did not have the power to impose those conditions or, for that matter, any conditions. History of the matter [5] The subject child was born on 11 July 2010. The first respondent is the child’s mother and the second respondent is the child’s father. [6] On 19 July 2010 Elizabeth Colahan, an authorised officer under the Act made an application under s 54 of the Act for a Child Protection Order in respect of the subject child. [7] Both the first and second respondents were subsequently served with a copy of the application. [8] The application was first mentioned before a Children’s Court Magistrate in Cairns on 29 July 2010 and adjourned to Cairns on 12 August 2010. [9] On 12 August 2010, the matter was again mentioned in Cairns and adjourned for mention in the Children’s Court at Pormpuraaw on 22 October 2010. On this occasion, the Court granted temporary custody of the child to the Chief Executive, which order had effect for the period of the adjournment. [10] When the matter was mentioned before the learned Magistrate at Pormpuraaw on 22 October 2010 the appellant was represented by telephone by Dallas Brown, a court coordinator employed by the department. Both the first and second respondents were represented by solicitors. [11] Unfortunately there is no transcript available of the proceedings that day and I can only glean what happened that day from a series of affidavits from the following people:- 1. Dallas Brown filed on 7 February 2011. 2. First respondent filed on 16 March 2011. 3. Kerry Margaret Rees (a solicitor from the solicitors that represented the first respondent and who had some dealings with the matter that day but did not appear) filed on 16 March 2011. 4. Janet Kay Methven (solicitor from solicitors for first respondent who did actually appear that day) filed on 16 March 2011. 5. Janet Kay Methven filed on 17 March 2011. 6. Juergen Kaehne (solicitor for the second respondent) filed on 14 March 2011. -- 2 of 8 -- 3 7. Juergen Kaehne filed on 16 March 2011. [12] While there is some conflict between the different deponents as to what was said during the course of discussions that day, it seems to me that the following matters are clear, namely:- 1. Both the first and second respondent were consenting to the order only on the conditions that were attached to the order that was eventually made. 2. Ms Brown, who appeared on behalf of the appellant, did raise in court the issue as to whether or not the learned Magistrate had the power to make an order with conditions. 3. The learned Magistrate decided that he did have such power. [13] It is disappointing that there is some conflict between the different deponents as to what was said at different times, but it seems to me that it is not necessary for me to have to determine any of the matters in dispute because the principal matter for determination by me relates to the power of the Court. [14] The matter has further been complicated by the fact that there were technical problems that day which meant that Ms Brown did not appear by telephone at the time the orders were finally made, although she had appeared by telephone earlier in the day. Grounds of appeal [15] The grounds of the appeal are as follows:- 1. There is no power vested in a Children’s Court Magistrate in the Child Protection Act 1999 to make a Child Protection order based upon certain conditions being satisfied. 2. There is no power vested in a Children’s Court Magistrate by the Child Protection Act 1999 to make conditions 1 and 2 as stated in the order. 3. The Children’s Court Magistrate erred in making a the order in the absence of the applicant’s representative. 4. Conditions 1 and 2 are inconsistent with the Child Protection Act 1999 in that they interfere with the powers provided to the Chief Executive. [16] In fairness to the applicant, it seems to me that the question of power became the sole issue by the time this matter was argued before me and I understand that there have been further developments which have resulted in a further interim order involving the subject child since. [17] It seems to me unnecessary to determine the point about whether the learned Magistrate was in error in making the final order, as he did, in the absence of the representative of the department because it is impossible for me to determine what happened without a transcript. It does appear, however, that the representative of the department was given the opportunity to be heard on the issue of whether or not the Magistrate had the power to impose the conditions which is essentially the matter that I am being asked to determine. Accordingly, it will not be necessary to interfere with his decision on the basis of what happened later in the day. -- 3 of 8 -- 4 Argument advanced on behalf of appellant [18] In essence, the appellant argues that the Children’s Court is an inferior court which has no inherent jurisdiction, but has implied powers, only as may be necessary to carry out its functions. It is argued that there is no specific power in the Act to attach conditions to a Child Protection Order. The appellant relied in particular on the following passage from the High Court in Grassby v R (1989) 87 ALR 618 at 628 where the Court said:- “…It would be unprofitable to attempt to generalise in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be ‘derived by implication from statutory provisions conferring particular jurisdiction’. There is in my view no reason why, where appropriate, they may not extend to ordering a stay of proceedings; cf R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 515.” [19] It was also argued on behalf of the appellant, that the making of conditions would fetter the powers of the Chief Executive under the Act when a child has been placed in the custody of the Chief Executive. [20] Section 12(2) of the Act provides:- “(2) The Chief Executive, or other person granted custody of the child, has – (a) the right to have the child’s daily care; and (b) the right and responsibility to make decisions about the child’s daily care.” [21] Division 4 of the Act applies in circumstances where the Chief Executive has custody or guardianship of a child under the Act and s 82 of the Act provides:- “82 (1) The chief executive may place the child in the care of – (a) an approved kinship carer for the child; or (b) an approved foster carer; or (c) an entity conducting a departmental care service; or (d) a licensee; or (e) if it is not possible, or not in the child’s best interests, for the child to be placed in the care of an entity mentioned in paragraphs (a) to (d) – a provisionally approved carer for the child; or (f) If the chief executive is satisfied another entity would be the most appropriate for meeting the child’s particular protection and care needs – that entity. Example for paragraph (f) – A particular medical or residential facility may be the most appropriate entity for a child with a disability. (2) Also, if the child is in the chief executive’s custody or guardianship under a child protection order, the chief executive may place the child in the care of a parent of the child.” -- 4 of 8 -- 5 [22] The appellant also relied on the provisions of s 89 which provides:- “89. The chief executive may decide to remove the child from the care of the child’s carer if the chief executive is satisfied it is in the child’s best interest.” Arguments advanced on behalf of the first and second respondents [23] Both the first and second respondents concede that there is no specific power to attach conditions referred to in the Act, but both argued that the power is implied. In the course of argument I was referred to sections 5, 5A, 5C and 104 of the Act which provide:- “5. (1) This Act is to be administered under the principles stated in this division. (2) All other principles stated in this Act are subject to the principle stated in section 5A. 5A. The main principle for administering this Act is that the safety, wellbeing and best interests of a child are paramount. … 5C. The following additional principles apply in relation to an Aboriginal or Torres Strait Islander child – (a) the child should be allowed to develop and maintain a connection with the child’s family, culture, traditions, language and community; (b) the long-term effect of a decision on the child’s idenity and connection with their family and community should be taken into account. 104(1) In exercising its jurisdiction or powers, the Children’s Court must have regard to the principles stated in sections 5A to 5C, to the extent the principles are relevant. (2) When making a decision under this Act, the Children’s Court must state its reasons for the decision.” [24] Moreover, the Children’s Court Act 1992 relevantly provides: “6(1) The Children’s Court has the jurisdiction conferred on it by any Act…” [25] Whilst I have no transcript as to what transpired, it certainly appears as though the conditions related to the principles set out in s 5C of the Act, this being a case involving an aboriginal baby born and residing in an outlying aboriginal community. [26] The respondents also argued that I could have regard to orders which were made in the Family Court, with the Family Court itself being a creation of statute, and not a court having inherent jurisdiction. I was referred to s 64B of the Family Law Act 1975 which provides:- (1) A parenting order is: (a) an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or (b) an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a). (2) A parenting order may deal with one or more of the following: -- 5 of 8 -- 6 (a) the person or persons with whom a child is to live; (b) the time a child is to spend with another person or other persons; (c) the allocation of parental responsibility for a child; (d) if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility; (e) the communication a child is to have with another person or other persons; (f) maintenance of a child; (g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of: (i) a child to whom the order relates; or (ii) the parties to the proceedings in which the order is made; (h) the process to be used for resolving disputes about the terms or operation of the order; (i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child. The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child). Note: Paragraph (f)—a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies. (3) Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child. (4) The communication referred to in paragraph (2)(e) includes (but is not limited to) communication by: (a) letter; and (b) telephone, email or any other electronic means. (4A) Without limiting paragraphs (2)(g) and (h), the parenting order may provide that the parties to the proceedings must consult with a family dispute resolution practitioner to assist with: (a) resolving any dispute about the terms or operation of the order; or (b) reaching agreement about changes to be made to the order. (5) To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(f), the order is a child maintenance order. (6) For the purposes of this Act: (a) a parenting order that provides that a child is to live with a person is made in favour of that person; and (b) a parenting order that provides that a child is to spend time with a person is made in favour of that person; and (c) a parenting order that provides that a child is to have communication with a person is made in favour of that person; and (d) a parenting order that: (i) allocates parental responsibility for a child to a person; or -- 6 of 8 -- 7 (ii) provides that a person is to share parental responsibility for a child with another person; is made in favour of that person. (9) In this section: this Act includes: (a) the standard Rules of Court; and (b) the related Federal Magistrates Rules. [27] I was referred specifically to the reference to “may” at the commencement of subsection (2) which then goes on to provide for a number of matters which can be dealt with in a parenting order, including with whom a child is to live and the time the child is to spend with another person or persons. [28] It was argued that that section did not make it clear that the Court could make orders in respect of specific matters such as whom the child is to live with and the time a child is to spend with another person. [29] It was also argued that the paramount consideration for a court exercising jurisdiction under the Act was the best interests of the child and that the power to impose conditions could be implied if it was in the best interests of the child to impose the conditions. Does the court have power to make conditions? [30] It seems to me that section 64B of the Family Law Act goes much further than does the State legislation. Section 64B permits the court to deal with matters such as with whom the child is to live and as to how long the child is to spend with another person in the parenting order itself. [31] There is no similar provision in the State legislation and I believe that before the Court has a power it has to be specifically spelt out in the legislation itself and cannot be implied by reference to the various statements of principle that appear in the legislation. [32] Statements of principle in statutes are not provisions which confer particular jurisdiction. [33] Section 61 of the Act is the section which confers jurisdiction to make the custody order and it clearly makes no reference to the imposition of conditions. [34] Applying the principles in Grassby (supra) I do not believe that the power to impose such conditions can be implied from the Act. [35] For practical purposes, it seems to me that it is unfortunate that this is the case, because very often situations could arise where it would be sensible to try and resolve the matter along the lines of how some of the parties at least thought that it was resolved here. [36] In the circumstances however, it seems to me that the appeal should be allowed. -- 7 of 8 -- 8 What order should this Court make? [37] The appellant has submitted that this Court having determined the issue of power, should merely delete the conditions. In view of the history of the matter this would be grossly wrong. It is clear that the respondents were only consenting on the basis of the conditions and the learned Magistrate may never have made the order under s 61(d)(ii) unless there was that consent. [38] In the absence of consent, I believe that the learned Magistrate would merely have adjourned the matter to a hearing date and that all he could realistically have done was to make a further order for temporary custody of the child to the chief executive pending the finalisation of the matter. [39] On the hearing of the matter, even if it was accepted that all of the matters under section 59 of the Act, had been attended to, he still would have had a discretion as to what order he did make under section 61 of the Act. The order for custody in favour of the chief executive is only one of the options that would have been open to him. [40] Further, I am told that there has been a subsequent temporary order made and that this is returnable on 24 June 2011 in the Children’s Court. [41] Having determined the substantive issue, it seems to me that the best course that I can take is to exercise my powers under s 225(3) of the Justices Act 1886 to exercise the power that which would have been exercised by the learned Magistrate had he formed the view that he did not have the power to make the necessary orders by consent i.e. to make a temporary order in favour of the chief executive until the hearing of the matter. [42] In the circumstances I make the following orders:- 1. That the appeal be allowed. 2. That in lieu of the order originally made by the learned Magistrate that the following order be substituted namely – that the subject child be placed in the temporary custody of the chief executive until 24 June 2011. 3. That any of the parties have liberty to apply on the giving of three days notice to the other parties. [43] I have included liberty to apply in case there are any procedural matters arising from the orders that I have made, and in case there are any issues in relation to costs. [44] I have made the order effective until 24 June 2011, in the hope that further consideration can be given to the matter by the parties, such that an appropriate order can be made when the matter next comes before the Children’s Court that day. -- 8 of 8 --