R v John Joseph Dainer; Robyn Esther Collyer and Toni Ann Collyer Ex Parte: Peter Crawford [1989] ACTSC 47 (6 October 1989)

SUPREME COURT OF THE ACT

THE QUEEN v. JOHN JOSEPH DAINER; ROBYN ESTHER COLLYER and
TONI ANN COLLYER EX PARTE: PETER CRAWFORD
No. S.C. 580 of 1989
Magistrates Court

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Magistrates Court - Order nisi to review - Words and Phrases - meaning of words "in need of care" and "is living" considered.

Childrens Services Act 1986 (ACT) Ss.5, 71, 73, 74, 75, 76, 78, 80, 81, 83 and 94

Youngman v. Lawson (1981) 1 NSWLR 439

HEARING

CANBERRA
6:10:1989

Counsel for the Youth Advocate: Mr T. Howe, Australian

Government Solicitor

Counsel for the Respondent: Mr J. Burns
Solicitor for the Respondent: Mr J. Tallarita

ORDER

The order nisi made herein on 22 September 1989 be discharged.

The applicant Youth Advocate pay the Respondent mother's costs of and incidental to the application. Those costs to be taxed.

DECISION

This is the return of an Order Nisi.

2. By an Agreement for Care and Custody of a Child made on 6 December 1988, it was recited that the child's parent had requested the Director of Welfare of the Australian Capital Territory to place the child under the care of a suitable person, that the Director had approved the parent's request under s.94(i) of the Children's Services Act 1986 (the "Act") and that the Director of Marymead (the "Caregiver") had agreed to receive the child under s.94(3) of the Act.

3. By the Agreement the Caregiver was to have the care and custody of the child during its term (it was to expire on 6 March 1989) and should be responsible for providing the necessities and amenities of life for the child during the term of the Agreement and was to be responsible for the wellbeing of the child during that term as well as for the day to day medical care and education of the child. The amenities of life were, according to the Agreement, to include "the maintenance and accommodation of the child and recreation and entertainment of the child".

4. The child's mother agreed to take certain steps in connection with her own personal situation and to visit the child regularly whilst in the care of the Caregiver. It is unnecessary to recite the details of what the parent agreed to do. It is set out sufficiently in a document headed "Case Contract" forming part of the Agreement of Care and Custody for the Child.

5. The Agreement was renewed twice. The term of the second renewal began on 8 June 1989 and ended on 8 July 1989. The second renewal provided that the Agreement might not be further extended.

6. On 4 July 1989, pursuant to s.78 of the Act, an application was filed on behalf of the Youth Advocate in respect of the child who was born on 7 November 1984. The ground relied upon in the application was that the child was in need of care within the meaning of s.71(1)(c) of the Act in that:-

"by reason of the circumstances in which the
child is living .....the health of the child has
been impaired or there is a likelihood that it
will be impaired (and because) the child has
suffered, or is likely to suffer, psychological
damage of such a kind that his or her emotionalor
intellectual development is or will be endangered."

7. The application came before the first respondent and was heard on 19 and 20 September 1989. The first respondent appeared on the return of the Order Nisi and having indicated by his Counsel that he was prepared to abide by the Order of the Court was granted leave to withdraw and took no further part in the proceedings.

8. On the hearing of the application there were tendered the three Agreements for Care and Custody of the Child dated respectively 6 December 1988, 7 March 1989 and 8 June 1989, the last being the Agreement to which I have earlier referred as the second renewal. In addition, a good deal of documentary and oral evidence was given before the learned Magistrate. He found, and the finding is not in dispute for the purposes of this matter, that he was satisfied that the child was a child in need of care within the meaning of s.71(1)(c) of the Act when she was first placed in Marymead pursuant to the terms of the first Agreement for Care and Custody of the Child. Nevertheless, he dismissed the Application, giving as his reason that as the child had been properly cared for in Marymead since December 1988 the circumstances in which the child (was) living or in which the child (was) found could not be said to satisfy the terms of s.71(1)(c)(i) or (ii) of the Act.

9. As a result of the dismissal of the Youth Advocate's Application the child had been returned to the care of her mother.

10. The evidence suggests, and I am prepared to accept as proven so far as it is necessary for the purposes of this hearing, that the child's welfare will be adversely affected if she remains in the care of her mother for more than a few days.

11. On 22 September 1989 I ordered on the Application of the Youth Advocate that an Order Nisi be directed to the respondents to show cause why a Writ of Certiorari should not issue to quash the decision of the first respondent upon the following grounds:-

(a) (the learned Magistrate) erred in law in construing
s71(1)(c) of the Act so as to limit the circumstances
to which regard could be had to circumstances of
physical location or physical environment;
environment;
(b) (the learned Magistrate) erred in law in
construing s71(1)(c) of the Act as requiring
that the relevant circumstances be extant.

12. The Youth Advocate was appointed pursuant to s.9 of the Act. His functions are those conferred on him by the Act and by any other law of the Territory as well as such other functions, if any, relating to children's welfare as are specified in the instrument of his appointment or as the Minister, by instrument in writing, from time to time determines.

13. It is convenient to set out at length much of the provisions to be found in Part V of the Act.

14. Section 71 is as follows:-

"(1) For the purposes of this Part, a child is in
need of care if -
(a) the child -
(i) has been physically injured
(otherwise than by accident); or
(ii) has been sexually abused,
by one of the child's parents or by a member
of the household in which the child lives or
there is a likelihood that he or she will so
suffer such physical injury or sexual abuse;
(b) the child -
(i) has been physically injured
(otherwise than by accident); or
(ii) has been sexually abused,
by a person other than a person mentioned in
paragraph (a), or there is a likelihood that
the child will so suffer such physical
injury or sexual abuse, and the child's
parents are unable or unwilling to protect
him or her from the injury or abuse;
(c) by reason of the circumstances in which the
child is living or in which the child is found -
(i) the health of the child has been impaired
or there is a likelihood that it will be
impaired; or
(ii) the child has suffered, or is likely to
suffer, psychological damage of such a
kind that his or her emotional or
intellectual development is or will be
endangered;
(d) the child is engaging in behaviour that is,
or is likely to be, harmful to him or her
and his or her parents or guardian are
unable or unwilling to prevent the child
from engaging in that behaviour;
(e) there is no appropriate person to care for
the child because -
(i) the child has been abandoned by his or her
parents or guardian;
(ii) the child's parents or guardian cannot,
after reasonable enquiries have been made,
be found; or
(iii) the child's parents are dead and he or she
has no guardian;
(f) there is a serious incompatibility between
the child and one of his or her parents or
between the child and his or her guardian; or
(g) the child is required by law to attend
school and is persistently failing to do so
and the failure is, or is likely to be,
harmful to the child.
(2) In the application of this Part, an authorised
person, the Youth Advocate or the Court shall have
regard to the degree of injury, abuse, impairment,
likelihood, incompatibility or failure and shall
disregard any of those things that, in the
circumstances, appears to be not sufficiently serious
or substantial to justify action under this Part."

15. The relevant parts of s.73 of the Act are as follows:-

"(1) If it appears to an authorised person that a
child is in need of care and the circumstances
are such that action under this sub-section
should be taken immediately to safeguard the
welfare of the child, the authorised person may
take the child into his or her custody and place
the child in a shelter or, if the person in
charge of an approved home or a hospital
consents, the approved home or hospital.
(3) The authorised person shall, as soon as is
reasonably practicable, notify the Youth Advocate
of the name and age of the child, the name of the
shelter, approved home or hospital in which the
person has placed the child, of the time when the
child was taken into custody and of any other
relevant circumstances."

16. Section 74 (1) is as follows:-

"(1) If it appears to an authorised person that a
child who is in a hospital is in need of care, or
would, upon leaving the hospital, be in need of
care, and that it is necessary to take urgent
action to safeguard the welfare of the child, the
authorised person may, in writing, direct that
the child be detained in the hospital and,
subject to this Ordinance, the child shall be
detained accordingly."

17. Section 75 reads:-

"(1) Upon a notification being made as provided
by section 73 or 74, the Youth Advocate may
direct that the child be released immediately
and, if the Youth Advocate does not so direct,
the Youth Advocate shall forthwith notify a
magistrate of the name and age of the child, of
the shelter, approved home or hospital in which
the child is and of any other relevant
circumstances.
(2) If, at the expiration of 48 hours after the
child was taken into custody under
sub-section 73(1) or a direction was given under
sub-section 74(1), action under this section has
not been taken by a magistrate, the child shall
forthwith be released.
(3) A magistrate may by order authorise the
detention of the child in the shelter, approved
home or hospital for such period, not exceeding
72 hours reckoned from the time when the
magistrate gives the authority, as the magistrate
specifies or may direct that the child be
released.
(4) Subject to sub-section (5), a magistrate may
act under sub-section (3) without any formal
hearing and upon the information given to him or
her by the Youth Advocate and the magistrate is
not required, before so acting, to hear any
person or behalf of the child or his or her
parents.
(5) Where the child, a parent of the child or
another person having custody of the child
applies to a magistrate to be heard, the
magistrate shall not act under sub-section (3)
without hearing the child, parent or person,
whether by way of a formal hearing or otherwise.
(6) If -
(a) a magistrate or the Youth Advocate directs that
the child be released; or
(b) the period of 72 hours referred to in
sub-section (3) expires,
the child shall, subject to section 80, be released,
as soon as is reasonably practicable, and reasonable
steps taken to return the child to his or her usual
place of living."

18. Section 76 reads:-

(1) If a magistrate authorises the detention of the
child, the Youth Advocate shall forthwith make
appropriate enquiries as to the welfare of the child
and may make an application to the Court for an order
under sub-section (3).
(2) Where the Youth Advocate makes an application
under sub-section (1), the child shall, unless the
Court otherwise orders, continue to be detained in a
shelter, approved home or hospital.
(3) The Court may make an order -
(a) that the child be no longer detained;
(b) authorising the continued detention of the child
in the shelter, approved home or hospital or his
or her detention in some other shelter, approved
home or hospital; or
(c) placing the child in the custody of a suitable
person.
(4) An order under paragraph (3)(b) or (c) remains in
force for such period, not exceeding 7 days, as the
Court specifies in the order.
(5) The Court may, upon application by the Youth
Advocate, make one further order extending the period
specified in the previous order by not more than
7 days."

19. Section 78 is concerned with applications for declarations that children are in need of care and is as follows:-

"(1) The Youth Advocate may make an application to
the Court for a declaration that a child, being a
child who is in the Territory or ordinarily resides in
the Territory, is in need of care.
(2) Before making such an application, the Youth
Advocate shall consult the Standing Committee."

20. Section 80 reads:-

"(1) The Court hearing an application under section 78
with respect to a child -
(a) subject to sub-section (2), may make a
declaration that the child is in need of
care; and
(b) where the Court makes that declaration,
shall make one or more of the orders
specified in section 83 with respect to
the child,
or may dismiss the application.
(2) The Court shall not make a declaration that the
child is in need of care unless the Court is satisfied
that the child is unlikely to receive suitable care
unless the Court makes an order of the kind referred
to in sub-section 83(1).
(3) The question whether a child is in need of care
or is unlikely to receive suitable care shall be
decided on the balance of probabilities.
(4) If an order is not made under this section within
6 months after the making of the application, the
application lapses and the child, if he or she is
detained under this Part, shall forthwith be
released."

21. Section 81 (1) reads:-

"The Court may adjourn a hearing under section 80 from
time to time but so that a period of adjournment does
not, unless the Court considers it necessary, exceed
21 days."

22. Counsel for the Youth Advocate submitted that the construction of s.71 adopted by the learned Magistrate was too narrow. He contended that it was appropriate and in accordance with the spirit of the legislation that a wide interpretation should be given to the expression "is living or in which the child is found" used in sub-paragraph (c) of s.71(1). He directed attention to s.5(1) of the Act which provides that:-

"In any proceedings in a court having
jurisdiction in the Territory, whether the
proceedings are under this Act or under some
other law......the court shall, in the exercise
of its jurisdiction or powers, seek to procure
for the child such care, protection, control or
guidance as will best lead to the proper
development of the personality of the child and
to the child's becoming a responsible and useful
member of the community."

23. He submitted that the expression "is living or in which the child is found" ought be taken to mean "has been living or in which the child has been found" so that it might be apt to cover a situation such as this. In essence, his submission was to the effect that:-

(a) where a child has been living in or has been
found in circumstances where, to use the words of
sub-paragraphs (i) and (ii) of s.71(1)(c), its
health has been impaired or there is a likelihood
that it will be impaired or it has suffered or is
likely to suffer psychological damage of such a
kind that his or her emotional or intellectual
development is or will be endangered;
(b) it is taken from those circumstances and by
some means, whether, as in this case, by
agreement, or otherwise, is placed in a place of
safety where its needs are reasonably met for a
time; and
(c) while still living in those circumstances is
at risk of being returned to circumstances of the
kind referred to in s.71(1)(c),

the Youth Advocate is entitled to make an application under s.78 on the ground that the child is in need of care because it may be returned to the situation in which it was found when first taken to a place of safety.

24. In my opinion the submission fails. If one looks at the provision of ss.73 and 74 of the Act, it is apparent that under s.73 an authorised person may take the action provided for in that section in respect of a child who appears to him or her to be in need of care, without any need for a declaration under s.80. Similarly under s.74 if it appears to an authorised person that a child who is in a hospital is in need of care, or would, upon leaving the hospital, be in need of care, the authorised person may take the action set out in that section. Thereafter under s.75, the Youth Advocate may, in either of the cases provided for by ss.73 or 74, direct the child's release immediately or shall notify the Magistrate of the name and age of the child, of the shelter, approved home or hospital in which the child is and of any other relevant circumstances.

25. If, at the expiration of 48 hours after action under ss.73 or 74, action under s.75 has not been taken by a Magistrate, the child shall be released. But the Magistrate may by order under s.75(3) authorise the detention of the child in the shelter, approved home or hospital for such period, not exceeding 72 hours from the time of giving the authority, as he specifies or may direct that the child be released.

26. It seems clear that unless the Court makes a declaration under s.80 that the child is in need of care pursuant to an application under s.78, the child is to be released at the expiration of the 72 hours provided for by s.75(3) of the Act or as the Court or the Youth Advocate directs. However, under s.76 the Youth Advocate may make an application to the Court for an order that, inter alia, the continued detention of the child in the shelter, approved home or hospital or in some other shelter, approved home or hospital be authorised or that the child be placed in the custody of a suitable person. Such an order is to remain in force for such period, not exceeding seven days, as the Court specifies in the order.

27. The timetable set out in the provisions just referred to seems to me to give adequate time for the Youth Advocate to take the necessary steps under s.78, that is to apply for a declaration that a child is in need of care and the consequential orders provided for in s.83 of the Act. But it seems to be clear that there is a strict timetable laid down during which a child taken from unsatisfactory circumstances where it was in need of care may be dealt with on the basis that it is still notionally in need of care although, in fact, during a period of up to ten days it may be living in such circumstances as are quite satisfactory and therefore, throughout that period, not in fact be in need of care.

28. It seems to me to follow, therefore, that the legislature intended that, if a child were in fact living in circumstances where it was in need of care and was taken from those circumstances pursuant to action taken under ss.73 and 74, the Youth Advocate might make an application on the basis that the child was notionally living in circumstances where it was in need of care notwithstanding the safe circumstances in which it had come to be held pursuant to the action taken under ss.73 or 74.

29. Further consideration of s.74(1) seems to me to indicate that a child entering a hospital may be in need of care although, of course, it is unlikely that a child in hospital would be in actual fact in need, and may be the subject of appropriate action. As well, the section provides that should it appear that a child would, upon leaving the hospital, be in need of care appropriate action may be taken. It seems to me that the legislature has been careful to ensure that a child in a hospital may be dealt with under s.74 if it appears that in the future, notwithstanding its present safe circumstances, it is likely to be in need of care. Since the legislature has in fact provided for the future situation by s.74 it seems to me to be unlikely that, had it meant to make such a provision in respect of s.71(1)(c), it would not have done so specifically.

30. One then turns to the plain apparent meaning of the words used in s.71(1)(c). The only meaning which does no violence to the language is that which the learned Magistrate applied to the words. I gain support for this interpretation from the decision of the Court of Appeal of New South Wales in Youngman v. Lawson (1981) 1 NSWLR 439 particularly at p 446.

31. During the course of the hearing I expressed the view that s.73 of the Act was available to be used in circumstances such as those presently obtaining. The Youth Advocate, however, was not, it would seem, prepared to accept this view. If he be correct, it follows that to meet circumstances such as those which I am considering, an amendment to s.71(1)(c) will be necessary.

32. The order nisi is discharged. The Youth Advocate is to pay the respondent mother's costs of and incidental to the application.