[Home] [Databases] [WorldLII] [Search] [Feedback] High Court of Australia

Johnson v Director-General of Social Welfare (Vic) [1976] HCA 19; (1976) 135 CLR 92 (14 April 1976)

CATCHWORDS

HEARING

DECISION

2. On 2nd October 1974, the appellants by notice of motion in the Supreme Court of Victoria sought (1) an order that Leanne Johnson, the child of the appellants, be made a ward of court, and (2) an order that the said Leanne Johnson be placed in the custody of the appellants. (at p94)

3. Upon the matter coming before the Supreme Court (Anderson J.), the jurisdiction of the Supreme Court to grant either of the orders sought was challenged by the Director-General of Social Welfare, the now respondent. By an interim judgment, delivered on 11th April 1975, the Supreme Court after reviewing relevant authorities and the terms of the Act concluded that the Court had jurisdiction to make the orders sought. Thereafter, his Honour considered whether or not such orders should be made and, after carefully reviewing the facts of the matter as presented both by the appellants and by the respondent, declared "that the child Leanne Johnson be and remain a ward of the Supreme Court" and ordered that the child be placed in the custody of the appellants. The Court further ordered that, subject to the two orders which I have just mentioned, the respondent should be the guardian of the child. (at p94)

4. From this order the respondent appealed to the Full Court of the Supreme Court of Victoria. That Court held, firstly, that there was no justification for regarding the whole of the inherent jurisdiction of the Court in relation to the protection of infants as excluded by the provisions of the Act; and, secondly, that the power of the Court to make an infant a ward of the Court had not been withdrawn by the Act in the case of infants admitted to the care of the Department of Social Welfare. However, it was held that, because of the terms of s. 37 of the Act, the Supreme Court had no power to place a child who had been admitted to the care of the Department of Social Welfare in the custody of any person, including the natural parents of the child. Consequently, the Court set aside the second and third orders which had been made by the primary judge. The appellants obtained special leave from this Court on 10th October last to appeal to this Court against the whole of the order made by the Full Court on 13th August 1975. (at p95)

5. There is no challenge on the part of the respondent to any of the conclusions of law drawn by the Full Court. The appellants, for their part, challenge only the conclusion that, by reason of the terms of s. 37 of the Act, the Supreme Court, though its inherent jurisdiction with respect to the protection of infants remains, cannot place a child who has been admitted to the care of the Department of Social Welfare in the custody of its parents or, for that matter, of any other person. (at p95)

6. Section 36, found in Div. 5 of the Act, is in the following terms:

"(1) The Director-General shall to the exclusion of the
father, mother, and every other guardian become and be
the guardian of the person and estate of any child or young
person admitted to the care of the Department or admitted
or committed to the care of the Children's Welfare Department
prior to the commencement of the Social Welfare
Act 1960 and shall remain such guardian until the child
or young person attains eighteen years of age or such
greater age (not exceeding twenty-one years) as the Minister
directs unless such child or young person is sooner
discharged.
(2) The Director-General may at any time order any
child or young person so admitted to be discharged from the
Department and thereupon the guardianship shall be terminated.
(3) Subject to this Act the Director-General shall have
as guardian the same rights powers duties obligations and
liabilities as a natural guardian of the child or young person
would have."

"Without affecting the generality of the provisions of
section 36 the Director-General -
(a) shall have the sole right to the custody of any child
or young person admitted to the care of the Department;
(b) may demand sue for and recover any wages earnings
or other moneys due to such child or young person;
(c) in the name and on behalf of such child or young
person may commence and prosecute any actions
suits claims or proceedings touching any property or
rights of such child or young person or touching any
matter in which such property or rights may be affected."
(at p96)

7. The appellants' argument is that s. 37 is no more than a declaration of rights which would, in any case, accrue to the Director-General of Social Welfare by his appointment as the sole guardian of a child admitted to the care of the Department of Social Welfare; that is to say, that the powers and rights given by pars (a), (b) and (c) of s. 37 are rights and powers which are implicit in guardianship. It is further submitted that the declaratory nature of s. 37 is emphasized by its opening words which evidently, it is said, intend the provisions of the section to be particulars of the more general expressions in s. 36 to which those opening words refer. (at p96)

8. Consequently, the appellants submit that the jurisdiction of the Court to supervise guardians of children, including the guardians of children admitted to the care of the Department, remains effective and includes a power to place such a child in the custody of any person. (at p96)

9. For the Director-General it has been submitted by the Solicitor-General that the presence of the word "sole" in par. (a) of s. 37 in the description of the right to the custody of the child is effective to indicate a parliamentary intention that the inherent power of the Court in the protection of children and in the supervision of guardians does not extend to the placement of a child in the custody of some person other than the guardian and that, in that respect, the Court's power is entirely displaced. (at p96)

10. The Solicitor-General rightly conceded that the Court in exercise of its inherent jurisdiction could supervise the exercise by the Director-General of his powers, duties and obligations as the guardian of a child admitted to the care of the Department of Child Welfare. He seemed to me also to concede, and in any case it is in my opinion correct, that in supervising the Director-General in the exercise of his powers and duties as a guardian, the Court could require him to exercise in relation to a child of whom he was the guardian one or more of the powers given to him by s. 40 of the Act and, in particular, to "place (the child) in the custody of some suitable person who is willing to take charge of him" (see s. 40(f)). But the Solicitor-General submitted that the Court, in the exercise of its inherent jurisdiction, could not itself directly place the child in the custody of some suitable person and, in particular, could not place the child in the custody of her natural parents. (at p96)

11. This Court has been quite emphatic in expressing its view that, if the Parliament wishes to take away from the Court its power of supervising the guardians, and protecting the welfare, of children, it must do so in unambiguous language, in language which is either express or such as inescapably implies that expression of intention on the part of the Parliament: see Minister for the Interior v. Neyens [1964] HCA 71; (1964) 113 CLR 411 , and Carseldine v. Director of Children's Services [1974] HCA 33; (1974) 133 CLR 345 . It is, of course, to be conceded that in these more populous and complex days the courts may not be able themselves to attend to the detail involved in the protection of children and in ensuring their welfare. Consequently, it has become necessary for statutes to provide for departmental officers and staff to take care of children who are in need of care and attention. But it is to my mind supremely important that there should remain in the courts the ability in appropriate cases to supervise the actions and the performance of the duties of the public servants to whose care such children are committed. If the legislatures, in their wisdom, should decide that the court ought to be entirely excluded and the matter be left entirely to departmental officers then, of course, Parliament can say so. For my part, it will need to do so in the clearest language. (at p97)

12. In my opinion, nothing in the language of the Act suggests any intention on the part of the Victorian legislature to remove from the Victorian courts their traditional and well-authenticated jurisdiction in connexion with the welfare of infants and the supervision of guardians. In particular, the Parliament, in choosing to extrapolate in s.37 the attributes of the Director-General as the sole guardian of children admitted to the care of the Department, evinces no such intention. As sole guardian, the Director-General would have the sole right to custody. This would be true whether he was a sole guardian of a child by nature, by instrument or by statute. In each case, the court would have power to place the child in the custody of some other person. Such an order would not deny the attributes of the sole guardian. So, in the present case, the description of the Director-General as sole guardian neither indicates a legislative intention to exclude the court's jurisdiction to make an order as to the custody of the child, nor places any impediment in the path of the court in doing so. (at p97)

13. I would allow the appeal. As the Full Court, because of its view of the law, did not proceed to decide the appeal made to it as to the propriety of the primary judge's order on the facts of the case, I would remit the matter to the Full Court to complete its consideration of the appeal to that Court. (at p98)

STEPHEN J. I agree both with the reasons for judgment of the Chief Justice and with the order which he proposes. (at p98)

MASON J. I entirely agree with the reasons for judgment prepared by his Honour the Chief Justice and also agree with the order which he proposes. (at p98)

MURPHY J. The question is whether the traditional power of the court to protect children admitted to the care of the Children's Welfare Department has been taken away by the Social Welfare Act 1970 (Vict.). Carseldine v. Director of Children's Services [1974] HCA 33; (1974) 133 CLR 345 makes it clear that only unambiguous language would be regarded as a sufficient expression of legislative intention to remove this power. There has to be a clear indication that the legislation refers to the power of the court and intends to exclude its operation. In England, similar questions have arisen in relation to traditional parental powers of the courts and of public agencies under the Childrens Act (see In re M (An Infant) (1961) Ch 328 and In re B (A Minor), per Lane J. (1975) Fam 36, at p 40 ). (at p98)

2. The effect of the Act is that, once an order is made, the Director-General is substituted for the parental (or testamentary or other) guardian who in law has the right to custody. This is achieved by s. 36 which provides:

"(1) The Director-General shall to the exclusion of the
father, mother, and every other guardian become and be the
guardian of the person and estate of any child or young person
admitted to the care of the Department or admitted or
committed to the care of the Children's Welfare Department
prior to the commencement of the Social Welfare Act 1960
and shall remain such guardian until the child or young
person attains eighteen years of age or such greater age (not
exceeding twenty-one years) as the Minister directs unless
such child or young person is sooner discharged.
(2) The Director-General may at any time order any child
or young person so admitted to be discharged from the Department
and thereupon the guardianship shall be terminated.
(3) Subject to this Act the Director-General shall have as
guardian the same rights powers duties obligations and liabilities
as a natural guardian of the child or young person
would have." (at p99)

3. The Director-General then has the rights and powers set out in ss. 37 and 40. Section 37 provides that, without affecting the generality of s. 36, the Director-General "shall have the sole right to the custody of any child or young person admitted to the care of the Department". He is also given power to conduct legal actions on behalf of the child. Section 40 provides that, subject to regulations, he may place the child in various centres, homes or institutions run by the State or others, or place him with suitable foster parents, or for adoption (if eligible) or in any other suitable situation as circumstances require. Some of these powers would have been exercisable by the person who would otherwise be guardian, but they are expanded by powers such as those enabling the Director-General to place the child for adoption (if eligible) or in centres or homes conducted by the State. (at p99)

4. The problem of interpretation is this: when the legislation says that the Director-General is the guardian of a child and has the sole right to custody, does this mean that the court cannot award custody to anyone else? Without the historical background, the simple answer would appear to be "Yes". But when the legal background is taken into account, the answer is "No". The courts have traditionally exercised the power (as parens patriae, parental power, protective power or jurisdiction, or quasi-parental power) to protect children. This power is exercisable over the person who is the guardian and has the right to custody (at common law or by statute) whether it is one or both parents, or a testamentary or other guardian. (at p99)

5. The origin of this power is obscure (see In re Gault [1967] USSC 114; (1967) 387 US 1 (18 Law Ed 2d 529) where the United States Supreme Court, in a judgment delivered by Fortas J. said of the Latin phrase, "parens patriae": "Its meaning is murky and its historic credentials are of dubious relevance."). The history of this power is discussed by McTiernan J. in Carseldine's Case [1974] HCA 33; (1974) 133 CLR 345 . But whatever its origin, the existence of the power is undoubted. (at p99)

6. Although the Act creates a statutory guardianship it does not disclose an intention to exclude the protective jurisdiction of the courts in respect of children subject to that guardianship. If a statute provides that the father of an ex-nuptial child is the guardian to the exclusion of the mother and every other guardian and has the sole right to custody, it would not exclude the child from the protective jurisdiction of the courts. (at p99)

7. There are good reasons for leaning against an interpretation which would exclude the traditional protective power. Apart from the exercise of this protective jurisdiction, the restraints placed on the Director-General's use of his powers are minimal. Authorities on family law have commented on the tendency of State Welfare agencies to retain permanent custody of children against the wishes of the natural parents although the reason for removal from the parents may have been only temporary. Professor Nygh has referred to "the remarkable reluctance of some State Child Welfare authorities to release a child in its care to a parent" (Guide to the Family Law Act (1975), p. 10). Michael Wald recently observed that "restraints placed on the exercise of coercive state power elsewhere are minimised or disregarded in the child neglect area" ("State Intervention on Behalf of 'Neglected' Children: A Search for Realistic Standards", Stanford Law Review vol. 27 (1975), p. 987). While this article is concerned with State agencies in the United States (in a context of fundamental guarantees), his observations on the tendency to interfere unnecessarily with or to prolong interference with family relationships are relevant to Australia. (at p100)

8. If the parental power of the court were excluded by statute, the Director-General could still be supervised by the courts. But this power of supervision, if exercised according to the usual principles of review of administrative decisions, would be severely confined. These principles are so limited that, unless they were extended in this area, they would not always provide justification for interference where a court is satisfied that a decision made in good faith by the Director-General was against the best interests of the child. If, however, traditional parental power is retained, it would without doubt enable the court to make orders which it considers are in the best interests of the child. (at p100)

9. The traditional power of the Supreme Court has not been taken away by the Act. (at p100)

10. The protective jurisdiction of the court in modern times should be exercised without resorting to outmoded procedures of wardship and the antiquated concepts relating to this status. (at p100)

11. The appeal should be allowed. I agree with the proposed order. (at p100)

ORDER

Order of the Full Court of the Supreme Court of Victoria set aside.

Remit appeal from an order of the primary judge to the Full Court of the Supreme Court of Victoria for further hearing.

(HIGH COURT OF AUSTRALIA.)

APPLICANTS,
AND

RESPONDENT,
ON APPEAL FROM THE SUPREME COURT OF
VICTORIA.