Minister for Interior (Cth) v Neyens

High Court of Australia|1964-07-01|Before: Taylor JJ

High Court of Australia Barwick C.J. McTiernan and Taylor JJ. Minister for Interior (Cth) v Neyens [1964] HCA 71

ORDER Appeal allowed. Order of the Supreme Court set aside, and in lieu thereof order that application be dismissed. The appellants to pay the respondent's costs of the appeal to this Court and of the application to the Supreme Court.

This is an appeal pursuant to special leave from the judgment and order of the Supreme Court of the Australian Capital Territory by which it was ordered that the custody of an infant, William Peter Neyens, then some twenty months of age, be committed to the respondent to the appeal, William Neyens, who is the putative father of the child. The Supreme Court purported to make the order either under s. 6 of the Infants' Custody and Settlements Ordinance 1956 of the Australian Capital Territory or by dint of the Court's general jurisdiction conferred by s. 11 of the Australian Capital Territory Supreme Court Act 1933-1959.

The contention of the appellant Ministers is that whatever jurisdiction the Supreme Court might otherwise have had to make an order for the custody of an infant, Pt V of the Child Welfare Ordinance 1957 of the Australian Capital Territory deprives the Supreme Court of any power to make an order for the custody of an infant which has become a ward within the meaning of the Ordinance which includes as such a child who has been admitted to government control under the provisions of the Ordinance.

Before turning to the central matter of law raised in the appeal, it might be as well if I set out the basic facts. The respondent, then a married man, during the latter part of 1961 formed an association with the mother of the child, she being an unmarried woman. As a result of this association the child was born in March 1962. The respondent and the mother continued to cohabit until November 1962, at which time they parted apparently in circumstances of mutual acrimony. The respondent would not allow the mother to take the child with her because, as he claimed, she had ill-treated the child. The respondent thus found himself in the situation of having on his hands a child of some eight or nine months of age with no feminine assistance and even without the child's clothing which the mother had removed. The respondent was in employment, receiving £15 a week in addition to free lodging, meat and vegetables. He had, however, no means of making any immediate arrangements for the child. He therefore approached the Child Welfare Department of the Australian Capital Territory to assist him.

The Supreme Court accepted his account of his dealings with the Child Welfare Department and found that he had made it clear to the officers of that Department that he only needed temporary assistance with regard to the care of the child, that he would be able to care for the child himself once he overcame the existing emergency, and that it was only in the unlikely event of his not being able to make provision of a permanent nature for the child that he would consider parting with the child altogether. He communicated to the officers not merely his genuine and deep affection for the child but his expectation that his wife, who was childless, would return and make a home with him so that the child could be cared for. He believed from what he was told by an officer of the Department that he could recover his child at any time and the Supreme Court found that, relying on this assurance, he was induced to consent to the order to which I now refer being made by the magistrate.

On the day the appellant sought the assistance of the Child Welfare Department, viz. 26th November 1962, a charge was laid against the child, William Peter Neyens, under Pt IX of the Child Welfare Ordinance, that the child was a neglected child within the meaning of s. 5 of that Ordinance "in that he is destitute". The magistrate who dealt with this charge had before him evidence that the respondent had said that the mother of the child had left him and the child on the preceding Friday, taking all the child's clothes, that he was not in a position to make any arrangements for the child and that he thought it would be better for the child to be somewhere where the mother could not interfere as he claimed to have reason to think that she might damage the child if she obtained possession of it. There was also evidence that the respondent had been told that it was intended to bring the child before the Court as a destitute child and that such a course would mean that if he were made a ward "neither the respondent nor the mother would have legal rights to the child". The magistrate also had evidence of the earnings of the respondent, of the fact that he had a wife and other commitments and that whilst at that time he had no means of looking after the child, maybe after a few weeks he would be in a position to do so.

The magistrate found the charge proved and committed the child to the care of the Minister to be dealt with as a ward. The child was thus admitted to government control under the terms of the Ordinance.

As the result of two agreements made between the Commonwealth and the State of New South Wales, dated respectively 9th January 1941 and 16th July 1962, each authorized by legislation of the Australian Capital Territory and of the State of New South Wales respectively, a child admitted to government control under the Child Welfare Ordinance could, on the authority of the Minister for the Interior or his delegate, be handed over to an officer of the Child Welfare Department of the State along with the necessary documents authenticating the fact that the child had been so admitted to government control, whereupon the child would become and remain subject to the terms and provisions of the Child Welfare Act of 1939 of the State and the State Minister for Child Welfare and his officers could thereafter exercise with regard to the child all the powers, discretions, duties and authorities vested in them by or under the State Act with respect to wards admitted to the State's control under that Act.

The only provision made by these agreements for the return to the Territory of a child who had thus been handed over to the State was that if the Commonwealth Minister determined after a consideration of the circumstances that it was in the interests of the child that it should be removed to the Territory, the child should be so returned upon service of the Commonwealth Minister's written determination upon the State Director of Child Welfare. The agreement of 26th July 1962 was not operative until 1st January 1963. But this is of no present significance, having regard to the attitude adopted in this appeal by the appellants.

However, on 27th November 1962, apparently as the result of action supposedly taken under these agreements, the child was delivered and received into one of the babies' homes of the State Child Welfare Department in Sydney. On 28th March 1963 the child was boarded out by the State authorities to foster parents in New South Wales with whom apparently he still remains.

Shortly after the events of November 1962 the respondent's wife and the respondent composed their differences and set up home together again. On 7th January 1963 the respondent and his wife interviewed the District Welfare Officer at Canberra with a view to getting the child back again. On 11th January 1963 the circumstances and the home of the respondent and his wife were favourably reported upon by the departmental officer. However, upon application being made by the respondent to the State Child Welfare Department for delivery of the child, the Under-Secretary of the State Department of Child Welfare informed the respondent in writing that as "the natural father of an illegitimate child he had no rights whatever regarding the custody or guardianship of the child" although "he had the responsibility of paying maintenance for it until it reached the age of sixteen or is adopted or dies whichever is the sooner". He further informed the respondent that because of the magistrate's order the mother was no longer the guardian of the child. He went on to write that he, as the delegate of the Minister, had the responsibility of seeing that the child had proper care, training and education, that he intended to fulfil that responsibility; and that he could hold out no hope that the child would be given into the care of the respondent. This was written notwithstanding the respondent's statement to the departmental officers that he had been assured that he could have the child back any time he had suitable accommodation for him, an assertion the truth of which was not departmentally examined but which, as I have said, the Supreme Court found to be the fact.

Thereafter proceedings were taken by the respondent in the Supreme Court of the Australian Capital Territory which resulted in the judgment and order from and against which this appeal is brought.

The Supreme Court took the view that neither its power under Pt 2 of the Infants' Custody Ordinance to make such order as it thought fit regarding the custody of an infant, having regard to its welfare, nor the paternal jurisdiction of the Court of Equity exercised on behalf of the Crown as parens patrii and guardian of all infants which the Supreme Court derived through s. 11 of the Australian Capital Territory Supreme Court Act 1933-1939, had been so far impaired by the Child Welfare Ordinance that the Court could not make an order giving the custody of this child to such person as in the interests of the child it thought fit.

The Court found that the father was a proper person to have the custody of the child, that his home and circumstances were such that it was in the interests of the child that he should be with the respondent and his wife, that the mother of the child was not a fit and proper person to have the custody of the child, and that there was no material upon which it could regard the foster parents with whom the child had been placed as having any competing claims in the interests of the child to its custody. Having formed the view that it had jurisdiction and that the welfare of the child would be best served by making the order, the Court made the order for custody as already mentioned.

Before this Court counsel for the Ministers has made it clear that neither of the Ministers wished to take any advantage in this case of the circumstance that at all material times the child was and still is in New South Wales: nor do they wish to make any point based on the terms of the said agreements either as to the position of the State Minister and his officers vis-à-vis the child, or of the absence of, or inability of the Court to direct a declaration by the Commonwealth Minister that it is in the interests of the child that it should be returned to the Territory. The sole matter the Ministers seek to raise in this appeal is that the Child Welfare Ordinance of the Australian Capital Territory has displaced whatever power the Supreme Court of the Territory might otherwise have had to make an order for the custody of this child which at all relevant times was and is a ward within the meaning of Pt V of that Ordinance.

Because of the attitude adopted by the Ministers there is no present need to examine the question whether or not, apart from the impact of the Child Welfare Ordinance, the Supreme Court would have had jurisdiction either under s. 6 of the Custody Ordinance, or pursuant to the jurisdiction attracted by s. 11 of the Supreme Court Act, to make an order for custody of a child not physically present in the Australian Capital Territory. But there can be no question that if the Supreme Court had jurisdiction to deal with the custody of this child, his Honour's findings in this case would be adequate to support the order which his Honour made. The crucial question, and indeed, before this Court the only question, is whether or not the language of the Child Welfare Ordinance satisfies the stringent requirements of the principle that jurisdiction of the kind the Ordinance is said to displace ought only to be treated as lost or withdrawn where this is done expressly or by necessary, indeed inescapable, implication.

The Child Welfare Ordinance which was founded to a very large extent upon the Child Welfare Act, 1939 of the State of New South Wales, in Pt IX provides means whereby a neglected child or an uncontrollable child or young person may be brought before a court of petty sessions and there dealt with in one of the ways set out in s. 55 of the Ordinance.

It is unnecessary for me to set out the fifteen principal categories of the definition of a neglected child which is to be found in s. 5 of the Ordinance. But a perusal of them indicates that in each classification some default or insufficiency of the parent is involved and in many of them some fault of the child as well. The same is true of the circumstances which are covered by the definition of an uncontrollable child or young person.

Part IX of the Ordinance provides for the issue of a summons for the appearance of an allegedly neglected or uncontrollable child or, if need be, for the issue of a warrant to bring it before a court of petty sessions; but in either event the summons or the warrant is to be issued upon the oath of a member of the police force or of the officer appointed under the Ordinance that, after due enquiry, the deponent believes the child to be a neglected child or an uncontrollable child. Section 54 provides means for having the parent of the child before the Court during any proceedings against the child unless the Court is satisfied that it would be unreasonable to require the attendance of the parent.

The courses open to a court which finds that a child is a neglected child or an uncontrollable child or young person are: (a) admonish and discharge the child or young person; (b) release the child or young person on probation; (c) commit the child or young person to the care of a person willing to undertake the care on prescribed conditions; (d) commit the child or young person to the care of the Minister to be dealt with as a ward admitted to government control; (e) commit the child or young person to an institution either generally or for a specified term not exceeding three years. (s. 55).

Section 18 of the Ordinance provides that the Minister shall admit a child to government control for the purpose of being apprenticed, boarded out, placed out or placed as an adopted boarder where - (i) a court has committed the child to the care of the Minister to be dealt with as a ward admitted to government control, or (ii) where the Minister is satisfied that it is necessary in the interests of the child so to do, and if the child or young person is in the custody of a parent, the parent has requested or consented to the admission of the child or young person to government control.

I might observe in passing that where action is taken under s. 18 (1) (a) (ii) of the Ordinance, the parent knowingly consents to the loss of guardianship, and the Minister considers the welfare of the child in relation to making him a ward.

Section 18 (1) imposes several duties upon the Minister with respect to a child admitted to government control, which include the arrangement of the terms and conditions of the custody of the ward.

Section 18 (2) gives the Minister powers and discretions as to the disposal of the person of the ward, including the power to end the wardship, except where the ward has been committed to an institution.

Section 19 provides: "(1) Notwithstanding any other law of the Territory relating to the guardianship or custody of children or young persons, the Minister is the guardian of a child or young person who is a ward, to the exclusion of the parent or other guardian. (2) Where a ward attains the age of eighteen years the Minister may terminate his guardianship. (3) Where the Minister does not terminate his guardianship of a ward under the last preceding sub-section, the Minister remains the guardian until the person who was a ward attains the age of twenty-one years." Taken with the definitions of child and young person, it seems to me that s. 19 provides for the wardship to continue at least until the ward attains the age of eighteen years and thereafter till twenty-one unless the Minister decides otherwise.

Section 20 gives the care of the person of all wards (except those who have been committed to an institution) to the Minister unless he has given that care to some other person by boarding or placing out or by apprenticing.

These provisions not merely indicate the general scheme of the Ordinance, so far as presently relevant, and the width and apparent permanence of the powers of the Minister over and with respect to a ward but the finality, vis-à-vis the parent or guardian, of an order committing a child to the care of the Minister to be dealt with as a ward admitted to government control.

In the present case his Honour accepted the view that the course that was taken in respect of this child was taken so that the department could expend Commonwealth funds on the maintenance of the child, the officer inducing the belief in the respondent that he would get the child back when he was able to care for it. But in truth, the course of proceeding was, to my mind, highly inappropriate to the circumstances. The provisions of s. 18 (1) (a) (ii) might have been better suited to the occasion: but in any case a closer examination and evaluation of the situation than appears to have taken place was necessary, due weight being given to the far reaching consequences for the child which flowed from his admission to government control, and to the possibility of some recent emotional upset or current fear and apprehension making a considered long-term judgment difficult, if not temporarily impossible, on the part of the parent. The committal of a child to government control under Pt IX cannot be treated as of course or be determined by departmental officers. The Ordinance commits the decision to a court and the subject matter calls for a most carefully considered judgment in which all the many factors are fully weighed without undue haste and, if need be, over some period of time, with temporary arrangements obtaining meanwhile.

However, the magistrate found the child to be neglected and made the order which resulted in his becoming a ward under the Ordinance. Although it is somewhat difficult to see that the child was destitute within the meaning of the definition of "neglected child" and although it is a very odd proceeding for a child of eight or nine months to be charged and to be convicted without anyone having any opportunity to appear for his interest, which was not identical with that of the putative father or, for that matter, of the natural mother, and although the considerations to which I have referred may have had no place in the magisterial mind, there was no basis upon which the Supreme Court could have disregarded the fact of the order and the consequences which its making produced under the terms of the Child Welfare Ordinance. The Supreme Court was bound to approach the respondent's application on the footing that the child had become and was a ward within the meaning of the Ordinance, being a child who had been admitted to government control by or by reason of the magistrate's order. Having become a ward, s. 19 is applicable to this child: and to its terms I have already called attention.

I fully appreciate and confirm what the learned judge of the Supreme Court has said about the important and salutary nature of the jurisdictions of that Court under the Infants' Custody Ordinance and under s. 11 of the Australian Capital Territory Supreme Court Act 1933-1939, and that they should not be treated as lost or qualified except by clear and unambiguous legislative expressions. But I am bound to say that the learned judge does not seem to have given sufficient weight to the compelling language of s. 19 and to the incongruity of a continuance of the Court's jurisdiction alongside the scheme of the Child Welfare Ordinance.

The Minister, s. 19 says, is the guardian of a child who is a ward. This is singularly emphatic language and it seems to me that it means that so long as a child is a ward the Minister is its guardian. The Supreme Court, except on appeal from the magistrate's order, has no power to discharge the child from his wardship. He must remain a ward, only the Minister having the power to terminate that status.

It has been put to us that under the general law whilst a guardian has the legal right to the possession of the ward, to its custody in the full sense of that word (see Halsbury , 3rd ed. vol. 21, p. 211), courts having jurisdiction in that respect are able to give the custody of the ward to some person other than the guardian, leaving with the guardian such rights and duties as the court may determine. It is therefore said that to provide that the Minister is and should remain the guardian of the ward during wardship is not inconsistent with a power in the Supreme Court to order that the custody of the ward should be in some other person. But s. 19 provides that the Minister is the guardian to the exclusion of the parent or other guardian, notwithstanding the provisions of any law of the Territory relating to the guardianship of infants. Whatever might have been the position if the section only provided that the Minister should be the guardian to the exclusion of the parent or guardian, full effect must be given to the opening words of s. 19 which make the provisions of the section paramount over laws which fall within their description. It must be conceded, and indeed it was conceded by the respondent's counsel, that the Infants' Custody Ordinance is a law of the Territory relating to the guardianship of children. Its provisions are not self operating with respect to the guardianship or custody of children but merely empower the Court to make orders in that respect. It seems to me that s. 19 provides that notwithstanding the existence of the general power in the Supreme Court under the Infants, Custody and Settlements Ordinance to make orders for the custody of children, according to the court's conception of the demands of the welfare of the child, the Minister is to be the guardian of the ward during his wardship.

This provision alone would make it extremely difficult, if not impossible, to hold that none the less the Supreme Court's jurisdiction remained capable of exercise in the case of a ward. But two other considerations put the matter, in my mind, beyond any real question.

First, there are the duties and powers laid upon or given to the Minister in respect of a ward by the Ordinance - see ss. 18, 19 and 20. I find the existence of these duties and powers completely inconsistent with the concurrent existence in the Court of a power to transfer the custody of the ward to some person of the Court's choice and not of the Minister's choice. The custodian under such an order would have at least most of the same duties, powers and discretions in relation to the child as these sections of the Ordinance give to the Minister. There being clearly no power to terminate the wardship, the concurrent existence of both sets of duties, powers and discretions would be inevitable if the Supreme Court's power to order custody is to remain. To my mind the submission that they may co-exist in relation to a ward is quite unacceptable.

The other consideration is the general scheme of the Ordinance. As I have already mentioned, the occasions on which a child may be brought before the court as a neglected or uncontrollable child all seem to involve fault, insufficiency or inadequacy on the part of the parent or the child and many of them involve moral turpitude on the part of one or both. The court is given the highly important function of determining the existence of those circumstances which warrant its taking one of the courses set out in s. 55. The court may determine in the case of a neglected child that it should be admitted to an institution and thus become a ward, see definition of ward in s. 5. It would indeed be anomalous if the Supreme Court, except on appeal from the magistrate, could by making an order for custody displace the corrective action taken by the tribunal to which the Ordinance gave the jurisdiction to order it. Where the child falls within one of the specific categories of a neglected child, or where the child or young person is an uncontrollable child or young person, so found after a full investigation of its circumstances, and a considered judgment made that of the various courses which might be pursued under s. 55, that of making the child a ward is the course to be preferred, one can readily understand that there should remain no jurisdiction in the Supreme Court to interfere with what has taken place before the magistrate's court, except on appeal therefrom, and thus to override the statutory consequences of the magistrate's order. It seems to me that the scheme of the Ordinance for dealing with neglected and uncontrollable children is itself quite inconsistent with a power in the Supreme Court to change the custody of a ward. To my mind, the Child Welfare Ordinance clearly and unambiguously displaces the power of the Supreme Court to order custody in this case, whether the power is sought to be derived from the Infants' Custody and Settlements Ordinance or from s. 11 of the Australian Capital Territory Supreme Court Act. I therefore conclude that the Supreme Court did not have jurisdiction to make the order appealed from. That order should be set aside and the respondent's application be dismissed. By reason of the undertakings given by the Ministers on the application for special leave, the appellant will pay the respondent's costs of this appeal and of the application before the Supreme Court.

In the present case the use of the provisions of Pt IX for what in my view was an inappropriate case has had the result that the question of what is best for this child, who is innocent of any wrongdoing and who can have a home with one of its progenitors, a home of a satisfactory kind, and whose parent has not really forfeited either by conduct or consent all right to consideration as its custodian, is to be determined not by either of these progenitors, nor by a court, but by a public servant. This situation, in the present circumstances, could have been avoided by the wardship being brought to an end as the Minister has every right and authority to do, and which, if the arrangements made by the putative father were as the learned judge has found them to be, he might well be expected to do. But the child remains a ward and this appeal has to be dealt with on the relatively narrow legal issue as to whether the terms of one Ordinance have expressly or by necessary implication superseded in relation to this child, being a ward, the Supreme Court's powers with respect to the custody of infants generally.

In my opinion, the Child Welfare Ordinance has produced that result and this appeal should be allowed.

I agree in the reasons of the Chief Justice and consequently that the appeal should be allowed.

I agree that the appeal should be allowed and I have nothing to add to the observations of the Chief Justice.

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Judgment (40 paragraphs)

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