RL v NT Minister for Health and Community Services & Ors
[2006] NTSC 34

PARTIES: RL

v

THE NORTHERN TERRITORY MINISTER FOR HEALTH AND COMMUNITY SERVICES

AND:

MELANIE LITTLE SM

AND:

KAS

AND:

KJS THROUGH HER LEGAL REPRESENTATIVE

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: No 50 of 2005 (20600302)

DELIVERED: 21 April 2006

HEARING DATES: 17 and 21 February 2006

JUDGMENT OF: SOUTHWOOD J

CATCHWORDS:

FAMILY LAW – CHILD WELFARE – joinder application – parties to an application by the Minister that a child is in need of care – application by de facto husband cohabiting with child’s mother for a declaration that he was a party to the proceeding in the Family Matters Court

PROCEDURE – JOINDER - necessary parties to application for judicial review – whether biological father is a necessary party to proceeding

Community Welfare Act 1983 (NT), s 4, 10(c), 11, 11A, 29, 32, 35, 36(1), 36(2), 36(4), 37(3)
Community Welfare Regulations 1984, r 6
Family Law Act (Cth) 1975, 60D, 61B, 61C(1)
Supreme Court Rules 2003 (NT), 9,06, 56,01, 56.02
Supreme Court Rules (Vic), 56.01(4), (9)

Cameron v Hogan (1934) 51 CLR 358; Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; Grovenor v Permanent Trustee Co of NSW Ltd (1966) 40 ALJR 329; Hewer v Bryant [1970] 1 QB 357; Miller v Miller [1973] NZLR 380; Robinson v Geisel & Ors [1894] 2 QB 685; Wedd v Wedd [1948] SASR 104 - applied

B v J [1996] FLC 92-716; In re C [1993] Fam 210; R v Hopkins (1806) 7 East 579; 103 ER 224; Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; R v Soper (1793) 5 Term Rep 278; In the marriage of Tobin [1999] FLC 92-848 - followed

REPRESENTATION:

Counsel:
Plaintiff: J. Munster
First Defendant: M. Heitmann
Second Defendant: No appearance
Third Defendant: M. Preston
Fourth Defendant: J. Stirk

 

Solicitors:
Plaintiff: Northern Territory Legal Aid Commission
First Defendant: Mark Heitmann
Second Defendant: No appearance
Third Defendant: Murray Preston
Fourth Defendant: Povey Stirk

Judgment category classification: B
Judgment ID Number: Sou0625
Number of pages: 25
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

RL v NT Minister for Health and Community Services & Ors
[2006] NTSC 34
No. 50 of 2005 (20600302)

BETWEEN:

RL
Plaintiff

AND:

THE NORTHERN TERRITORY MINISTER FOR HEALTH AND COMMUNITY SERVICES
First Defendant

AND:

MELANIE LITTLE SM
Second Defendant

AND:

KAS
Third Defendant

AND:

KJS THROUGH HER LEGAL REPRESENTATIVE
Fourth Defendant

CORAM: SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 21 April 2006)

Introduction

[1] This is an application for judicial review. The plaintiff seeks an order in the nature of certiorari quashing a decision of the Family Matters Court, which was delivered on 29 November 2005, dismissing his application to be joined as a party to proceeding No 20510044 in the Family Matters Court (“the proceeding”) and a declaration that under s 36(4) of the Community Welfare Act (“the Act”) the plaintiff is deemed to be a party to the proceeding. In the alternative, the plaintiff seeks an order of the Supreme Court that he be joined as a party to the proceeding.

[2] The proceeding concerns the proper care of the fourth defendant who is an eight year old child. The plaintiff says that he has an ongoing interest in the proceeding because on 14 June 2006 there is to be a further review in the Family Matters Court of the final guardianship and custody orders that were made by the court on 23 November 2005 and he is the step-father of the fourth defendant.

[3] The plaintiff’s application to the Supreme Court is opposed by the Minister for Health and Community Services (“the Minister”) who argues that the plaintiff’s application to the Supreme Court for judicial review should be stayed as the father of the fourth defendant has not been joined as a defendant to the plaintiff’s application for judicial review; the only parties to a proceeding in the Family Matters Court are those parties specified in s 36(4) of the Act and the plaintiff did not fall within the provisions of s 36(4) of the Act; and, neither the Supreme Court nor the Family Matters Court has the power to permit the joinder of a party to a proceeding in the Family Matters Court.

[4] The second, third and fourth defendants neither oppose nor support the plaintiff’s application in the Supreme Court. As is usual in applications such as this there was no appearance by the second defendant (“the presiding magistrate”). Her Honour informed the Supreme Court that she will abide the determination of the court. Mr Preston who appeared on behalf of the third defendant asked to be excused and Mr Stirk more or less adopted the position of a counsel with a watching brief.
The issues

[5] There are two principal questions in this proceeding. First, should the Supreme Court make any orders in the absence of the father of the fourth defendant? That is, is the father of the fourth defendant a necessary party to the plaintiff’s application in the Supreme Court? Secondly, under s 36(4) of the Act, is the plaintiff a party to the proceeding in the Family Matters Court?

[6] In my opinion the application for judicial review in the Supreme Court should not be stayed. The father of the fourth defendant is not a necessary party to the application. However, the plaintiff’s application for judicial review and for a declaration cannot be sustained. The applications should be dismissed. The plaintiff’s application to be joined as party to the proceeding was misconceived. The only parties to a proceeding under Part VI of the Act which is commenced by the Minister in the Family Matters Court are the Minister, the child and the parents having custody of the child or the guardians having custody of the child or the persons having custody of the child: s 36(4) of the Act. The plaintiff is not a person having the custody of the fourth defendant within the meaning of s 36(4) of the Act.
The proceeding in the Family Matters Court

[7] The fourth defendant was born on 1 November 1997. She is unrelated to the plaintiff. She is the daughter of the third defendant in whose custody she has been for most of her life. The plaintiff and the third defendant have been in a relationship since 2001. They have been cohabiting since late 2004. The plaintiff and the third defendant are the natural parents of D who is 19 months of age and P who is three years of age. The plaintiff has a third child, a son J, who is 6 years of age. J is not related to the third defendant. The fourth defendant and P and D resided together with the plaintiff and the third defendant in Alice Springs from late 2004 until 27 April 2005. J resided with the other three children, the plaintiff and the third defendant from January 2005 until 27 April 2005.

[8] On 26 April 2005 the plaintiff took J to the Alice Springs hospital. The plaintiff informed the hospital that J had suffered a seizure. J had serious injuries which required an emergency air-lift to the Adelaide Women’s and Children’s hospital for intensive care and critical treatment. His injuries included amongst other things: multiple haematomas to his head and brain; facial abrasions; possible pancreatic and liver injury; a bruised and fractured rib; a fractured pelvis; multiple abrasions all over his body; and large haematomas to both buttocks and thighs. Medical investigation found that the nature of J’s presentation at the hospital was inconsistent with the plaintiff’s explanation of J’s injuries. His injuries were non-accidental in nature. In her report dated 21 July 2005, Dr Jane Edwards, a consultant paediatrician, noted the following, “J has suffered inflicted head, skeletal and extensive cutaneous injuries. Considerable forces would have been required to cause these injuries.” J’s injuries were consistent with him having been the target of repeated abuse over a period of time.

[9] On 27 April 2005 the Minister took the fourth defendant and P and D into custody under s 10(c) and s 11 of the Act and placed them in the care of the parents of the third defendant (“the maternal grandparents”). Sections 10 and 11 of the Act enable the Minister to take a child into custody, pending a substantive application to the Family Matters Court, where the Minister believes on reasonable grounds that a child is in need of care and that no other action would ensure the adequate care of the child. On 28 April 2005 a holding order extending the arrangements put in place by the Minister was made by the Registrar of the Family Matters Court under s 11A of the Act.

[10] On 29 April 2005 the plaintiff and third defendant were jointly charged with causing grievous harm to J. On 18 April 2006 the plaintiff and the third defendant were committed by the Court of Summary Jurisdiction to stand trial in the Supreme Court.

[11] On 6 May 2005 the Minister commenced the proceeding in the Family Matters Court. He did so by filing a Form 3 in accordance with r 6 of the Community Welfare Regulations in the Family Matters Court. In his application to the court the Minister sought an order that the fourth defendant be declared in need of care. The application was made concurrently with similar applications in relation to P, D and J.

[12] On 11 May 2005 the proceeding first came before the presiding magistrate. It came before her for an interlocutory hearing. She directed the plaintiff to leave the court during the hearing. At the end of the hearing she made orders that Mr John Stirk, a legal practitioner, be appointed as the representative of the fourth defendant; the Minister’s application to the court proceed notwithstanding that the father of the fourth defendant had not been notified of the proceeding in the Family Matters Court and was not present in the court; the fourth defendant be placed in the custody of the Minister for 14 days; the proceeding be adjourned to 25 May 2005; and the fourth defendant was excused from attending in the Family Matters Court until further order. On the same day the presiding magistrate also made orders in relation to the plaintiff’s children P, D and J. The plaintiff was present in the Family Matters Court when those orders were made by the court.

[13] The proceeding in the Family Matters Court was adjourned a number of times. On 17 November 2005 a case conference was held in order to reach agreement between parties as to the future care arrangements of the fourth defendant and P and D. In attendance at that conference were the plaintiff and his legal representative, three employees of the Minister and his solicitor, the third defendant and her solicitor, the fourth defendant and her legal representative, and the children’s maternal grandparents.

[14] The proceeding came back before the Family Matters Court on 23 November 2005. Mr Goldflam appeared for the plaintiff. He applied to the court for an order that the plaintiff to be joined as a party to the proceeding. The application was an oral application and no affidavits were read in support of the application. A report of Dr L J Blunt dated 5 November 2005 and possibly a report of Ms J Welsh dated 6 May 2005 were the only evidence before the Family Matters Court about the relationship between the plaintiff and the fourth defendant. Dr Blunt is a clinical psychologist.

[15] The argument in support of the plaintiff’s application to be joined as a party to the proceeding was not well developed. The plaintiff’s joinder application was supported by Mr Heitmann, who appeared for the Minister, and by all of the other parties to the proceeding. Mr Heitmann submitted that the plaintiff came within the provisions of s 36(4) of the Act. At the close of submissions the presiding magistrate reserved her decision about the plaintiff’s application to be joined as a party to the proceeding.

[16] Somewhat unusually, immediately after reserving her decision on 23 November 2005 about whether the plaintiff should be joined as a party to the proceeding, the presiding magistrate heard the Minister’s substantive application concerning the fourth defendant and made the following final orders: the fourth defendant is declared to be in need of care; the fourth defendant is to be in the joint guardianship of the Minister, her maternal grandparents and the third defendant; the custody and access of the fourth defendant is at the discretion of the Minister, save and accept that the fourth defendant is not to be placed in the custody of the third defendant unless expressly ordered by the Family Matters Court; and, the proceeding is adjourned to 14 December 2005 for review. The orders were made in the absence of the plaintiff and his Counsel, Mr Goldflam. The orders were made by the consent of all of the other parties who were before the court. The orders are consistent with the agreement of all of the parties including the plaintiff that was made on 17 November 2005.

[17] The orders made in relation to the fourth defendant are different to the orders made in relation to J, P and D. The latter orders provide the custody and access of the relevant child is at the discretion of the Minister, save and except that the child is not to be placed in the custody of the plaintiff or the third defendant unless expressly ordered by the Family Matters Court. In contrast the order in relation to the fourth defendant only provides that the custody and access of the fourth defendant is at the discretion of the Minister, save and except that the fourth defendant is not to be placed in the custody of the third defendant unless expressly ordered by the Family Matters Court. It would appear that the Minister has discretion to place the fourth defendant in the custody of the plaintiff.

[18] The basis on which the Minister alleged that the fourth defendant was said to be in need of care is unclear to me. So is the basis on which the parties consented to the orders that were made on 23 November 2005. The report of Ms J Welsh dated 6 May 2005 which was before the Family Matters Court was not tendered in the Supreme Court. It is likely that the basis of the Minister’s application that the fourth defendant be declared in need of care was the plaintiff’s and the third defendant’s maltreatment of the fourth defendant. For the purpose of the Act a child suffers maltreatment, inter alia, where there is a substantial risk that the child will suffer a physical injury causing serious pain which will be inflicted by or which will be allowed to be inflicted by the third defendant.

[19] Dr Blunt’s report contains evidence to the following effect: on occasion, when the plaintiff disciplined the fourth defendant, he struck her with a “whacker” which is a similar kind of whip to a cat of nine tails; the plaintiff treated the fourth defendant and J differently to the other children; J and the fourth defendant were harshly disciplined by the plaintiff; the third defendant authorised the plaintiff to discipline the fourth defendant; the third defendant was not prepared to recognise that on occasion the plaintiff mistreated the fourth defendant; and, the fourth defendant was vulnerable to and at risk of further abuse by the plaintiff if she is in his care and control.

[20] On 29 November 2005 the presiding magistrate dismissed the plaintiff’s application to be joined as a party to the proceeding and she published reasons for her decision.

[21] On 14 December 2005 following a review of the fourth defendant’s guardianship and custody orders, the presiding magistrate ordered a continuation of the guardianship and custody orders made by the Family Matters Court on 23 November 2005. The plaintiff was not present in the Family Matters Court when orders were made extending the guardianship and custody orders of the fourth defendant. The next review of the fourth defendant’s guardianship and custody orders is to be conducted by the Family Matters Court on 14 June 2006. The plaintiff wants to be present in the Family Matters Court and to be heard at the next review of the orders about the guardianship and custody of the fourth defendant.

[22] The father of the fourth defendant has not been present at all during the proceeding in the Family Matters Court. The father of the fourth defendant is only known to the third defendant and she was not prepared to reveal the name or the whereabouts of that person to the parties or to the Family Matters Court. Subsection 37(3) of the Act provides that the Court may proceed with the hearing of an application under Part VI of the Act notwithstanding that the parents, guardians or persons having the custody of the child are absent.

The reasons for decision of the presiding magistrate

[23] The presiding magistrate was not given the assistance to which she was entitled to receive from all of the counsel who appeared before the Family Matters Court on 23 November 2005. The plaintiff’s joinder application was misconceived. If the plaintiff fell within the provisions of s 36(4) of the Act he was deemed to be a party to the proceeding in the Family Matters Court and under s 37 of the Act he was required to be present in the Family Matters Court during any hearing of the Minister’s application that the fourth defendant be declared in need of care.

[24] Although the presiding magistrate correctly dismissed the plaintiff’s application to be joined as a party to the proceeding, she made a number of errors. First, the presiding magistrate gave no reasons for her finding that the plaintiff did not fall into any of the categories of party specified in s 36(4) of the Act. The interim guardianship and custody arrangements of a child which arise when the Minister exercises his powers pursuant to the Act or when interim or interlocutory orders are made by the Family Matters Court are not relevant to determining if a person is deemed to be a party under s 36(4) of the Act nor is the fact that guardianship and custody orders have been made pursuant to the Act. The people who by s 36(4) of the Act are deemed to be parties to an application under Part VI of the Act include the same people to whom the Minister is required to give notice under s 36(2) of the Act. Secondly, while the interests of the child are relevant to the consideration of whether the child is in need of care and, if so, what guardianship and custody orders should be made by the Family Matters Court, the interests of the child are not relevant to who under s 36(4) of the Act is deemed to be a party to a proceeding in the Family Matters Court. The Family Matters Court cannot act contrary to s 36(4) and s 37 of the Act.

The plaintiff’s case before the Supreme Court

[25] Counsel for the plaintiff, Ms Munster, argued that s 36(4) of the Act deemed the plaintiff to be a party to the proceeding in the Family Matters Court because the plaintiff was a person “having the custody” of the fourth defendant. She said that there was no dispute between the parties, that for a period of at least three years the fourth defendant had been living in the joint care of the plaintiff and the third defendant. It was thereby established that the plaintiff was a person “having the custody” of fourth defendant immediately before 27 April 2005 when steps were taken by the Minister under the Act to ensure the proper care of the fourth defendant. Ms Munster submitted that the presiding magistrate had made an error of law in that she misconstrued and misapplied the provisions of s 36(4) of the Act and took into account irrelevant considerations including: the question of whether or not it was in the best interests of the fourth defendant to join the plaintiff as a party to the proceeding in the Family Matters Court; whether the fourth defendant was treated differently to the other children by the plaintiff; whether the fourth defendant would give evidence in criminal proceedings; and, whether it was appropriate to join the plaintiff as a joint guardian. Ms Munster did not argue that the plaintiff was a parent or guardian of the fourth defendant.

[26] In support of the plaintiff’s application in the Supreme Court, Ms Munster read two affidavits of Mr Goldflam dated respectively 30 December 2004 and 3 February 2005 and an affidavit of the plaintiff dated 21 February 2005. The affidavits provided a chronology of the proceeding in the Family Matters Court, annexed the reasons for decision of the presiding magistrate dated 29 November 2005 and the report of Dr L J Blunt and deposed to the relationship between the plaintiff and the third and fourth defendants. The evidence about the relationship between the plaintiff and the third and fourth defendants lacked detail and contained a lot of assertions.

[27] Based on the evidence that was tendered in the Supreme Court, I make the following findings of fact. The third defendant is the mother of the fourth defendant who is an eight year old girl. The plaintiff is not related to the fourth defendant. The plaintiff and the third defendant have been in a relationship since 2001. The plaintiff has known the fourth defendant since 2001. The plaintiff and the third defendant have two children, P aged three years and D aged 19 months. The plaintiff and the third defendant started cohabiting in late 2004. The fourth defendant resided in a home in Alice Springs with the plaintiff and the third defendant from late 2004 until 27 April 2005. Between late 2004 and 27 April 2005 the fourth defendant was in the actual care and control of the third defendant and the plaintiff. From 27 April 2005 until the present the fourth defendant has been residing with her maternal grandparents. She has done so pursuant to steps taken by the Minister under the Act and under guardianship and custody orders made by the Family Matters Court.

[28] During the time that the plaintiff has resided with the third defendant and the fourth defendant, the plaintiff has on occasion exercised control over the fourth defendant subject to the authority granted to him by the third defendant. He has also as a matter of fact and his own choosing taken increasing responsibility for the care of the fourth defendant. Virtually all of the income of the plaintiff and the third defendant was spent on the living and social expenses of themselves and the four children. The plaintiff has limited parenting skills. However, he has provided financial support for the fourth defendant, taken her to school on occasions, shown some interest in her educational development, played with her and disciplined her. Just after P was born on 4 September 2002 the fourth defendant asked the plaintiff if she could call him “dad”. He gave her permission to so do and thereafter the fourth defendant has called the plaintiff “dad”. However, the fourth defendant does not trust the plaintiff. She finds him unpredictable and she does not know where she stands with him. She gains most of her nurturance from her mother or her grandmother. During the time that Dr Blunt observed the plaintiff in his home he did not appear to be interested in the fourth defendant or what she was saying.

[29] I am not able to find that the plaintiff has been acting as a substitute father of the fourth defendant or that he has assumed full parental responsibility for the child in her father’s absence. His affidavit did not go far enough and no supporting affidavit was provided by the third defendant. The plaintiff has only been residing with the third and fourth defendant for about six to eight months. The activities he has undertaken with the fourth defendant are very rudimentary and occasional. Michael Geraghty still appears to fulfil a role of being a father figure.
Necessary parties

[30] Order 56.01 of the NT Supreme Court Rules provides that the jurisdiction of the court to grant relief or a remedy in the nature of certiorari, mandamus, prohibition or quo warranto shall be exercised only by way of judgement or order and in a proceeding commenced in accordance with this Chapter 1. Neither r 56.01 nor r 56.02 of the Supreme Court Rules (NT) stipulates who should be joined as a defendant to a proceeding seeking judicial review. Order 56 of the Supreme Court Rules has no equivalent rule to r 56.01(2)(a) of the Supreme Court Rules (Vic), which provides that for judicial review a proceeding shall be commenced by originating motion naming as defendant a person having an interest to oppose the claim of the plaintiff.

[31] In order to determine who should be a party to a proceeding commenced under Chapter 1 of the Supreme Court Rules (NT) it is necessary to consider the provisions of O 9 of the Supreme Court Rules (NT). So far as is relevant, r 9.06 of the Supreme Court Rules provides that:
9.06 Additional, removal, substitution of party

At any stage of a proceeding the Court may order that –

(a) …

(b) any of the following persons be added as a party:

(i) a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated on; or

(ii) a person between whom and a party to the proceeding there may exist a question arising out of, or relating to or connected with, a claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding; or

(c) …

[32] In addition to the provisions of r 9.06, the Supreme Court has an inherent jurisdiction to stay a proceeding which is an abuse of process.

[33] Counsel for the Minister submitted that the presence of the father of the fourth defendant was necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated. The objection to the non-joinder of the fourth defendant’s father was properly taken before the trial: Cameron v Hogan (1934) 51 CLR 358 at 371. The objection is not without some force. As the fourth defendant was born after 1995, her father is subject to the provisions of Division 2 of Part VII of the Family Law Act (Cth). Subsection 61C(1) of the Family Law Act provides that each of the parents of a child who is not 18 has parental responsibility for the child. Parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children: s 61B Family Law Act. The provisions of s 61C(1) have effect subject to any order of a court for the time being in force.

[34] Rules as to the joinder of necessary parties need to be strictly observed: Grovenor v Permanent Trustee Co of NSW Ltd (1966) 40 ALJR 329 at 330. However, there exists a large discretion in the court to permit an action to go on, so that the rights of the parties before the court may be determined even though all parties to the action are not before it: Robinson v Geisel & Ors [1894] 2 QB 685 (CA) per Kay LJ at 689. An action will not be stayed on grounds that one of the defendants has not been served, in circumstances where it is apparent a plaintiff has done everything within his powers to effect service: Robinson v Geisel & Ors (supra).

[35] The plaintiff has not done everything within his power to identify the father of the fourth defendant and inform him of the application in the Supreme Court. For example, he has not asked Mr Chad Connolly, who was a witness to the fourth defendant’s birth, if he could identify the father of the fourth defendant. He has merely asked the third defendant who the father of the fourth defendant is and accepted her refusal to disclose the name of the father of the fourth defendant. Nonetheless I do not propose to stay the application in the Supreme Court for judicial review. Although it would have been of assistance if the fourth defendant’s father had been joined as a party, the Minister has acted as a contradictor to the plaintiff’s claim and all questions have been effectually and fully considered. It is important that this application is resolved before the next review of the orders made by the Family Matters Court which is to be heard in the Family Matters Court on 14 June 2006.
Subsection 36(4) Community Welfare Act

[36] The Family Matters Court is a specialist court that is created by statute for the purpose of hearing and determining applications about children who are in need of care. The Family Matters Court can only exercise the jurisdiction and powers expressly or impliedly granted to it by the Act. Subject to a person obtaining the leave of the Family Matters Court to make an application seeking a declaration that a child is in need of care, the Minister has the sole authority to make an application to the Family Matters Court for a declaration that a child is in need of care. An application may only be made where the Minister is satisfied that the welfare of the child cannot be adequately provided for by other means and notice in writing has been given to the parents, guardians or persons having custody of the child and where the child is 10 years of age or older, the child: s 36(1) and s 36(2) of the Act.

[37] The Family Matters Court becomes seized with jurisdiction to make a declaration that a child is in need of care and to make ancillary orders for the proper care of the child upon the Minister filing in the court an application which names the Minister, or his delegate, as the applicant and the child who is the subject of the application: s 29, s 35, s 36 and s 37 of the Act. Rule 6 of the Community Welfare Regulations specifies that Form 3 is the originating document for an application for a declaration that a child is in need of care. The form only requires the names of the applicant and the child who is the subject of the application to be stated on the form. Section 36(4) of the Act deems certain people to be the parties to the application in the Family Matters Court. Section 37 of the Act makes it mandatory for those people who are deemed to be parties to the application because they have the custody of the child to attend the proceedings in the Family Matters Court until excused from attending by the court. Neither the Act nor the Community Welfare Regulations give the Family Matters Court the power to join a party to a proceeding under Part VI of the Act. Section 36(4) covers the field of who is a party to an application for a declaration that a child is in need of care.

[38] Section 36(4) provides as follows:

(4) In an application under this Part in relation to a child, the Minister, the child and the parents, guardians or persons having the custody of the child are, or shall be deemed to be, parties to the application.

[39] The “parents, guardians or persons having the custody of the child” referred to in s 36(4) of the Act are the same “parents, guardians or persons having the custody of the child” referred to in s 36(2). Otherwise the notice provisions of s 36(2) of the Act would be meaningless and there could well be a circularity of interests in a proceeding under the Act. This is not the intention of the legislature. The “Minister” is not the same person as “the person having custody of the child”.

 

[40] The persons who are by s 36(4) of the Act deemed to be parties to an application under Part VI of the Act are the Minister, the child and those persons having the legal custody of the child who may be the child’s parents, the child’s guardians or other persons. In a case where a child has parents and guardians and there are also persons who have legal custody of the child, s 36(4) does not deem the child’s parents and guardians and the persons having legal custody of the child all to be parties to an application that the child is in need of care. It is only where there is joint or shared legal custody that the parents, guardians and other persons having the legal custody of the child may all be deemed to be parties to the application in the Family Matters Court. The word “and” which follows the word “child” in s 36(4) of the Act has a conjunctive operation. However, the comma after the word “parents” has a disjunctive effect, as does the word “or” which follows the word “guardians”. The words “having the custody of the child” qualify and amplify each and all of the words “parents”, “guardians” and “persons”.

[41] “Parents” are not defined in the Act. However, under Australian law including the common law, the Adoption of Children Act and s 60D of the Family Law Act (Cth) the word “parents” usually refers to or includes both the natural and adoptive parents of a child. Subject to the particular facts of each case either a child’s natural parents or a child’s adoptive parents would be deemed to be parties to an application that a child is in need of care: In re C [1993] Fam 210 at 212 - 213. Such a construction is consistent with the provisions of the Family Law Act. “Parent” does not mean a person who merely stands in loco parentis to a child: Miller v Miller [1973] NZLR 380 at 383; B v J [1996] FLC 92-716, at 83,614; In the marriage of Tobin [1999] FLC 92-848 at 85,938-85. The plaintiff is not a parent of the fourth defendant within the meaning of the Act nor did his Counsel contend that he was a parent of the fourth defendant.

[42] The word “guardians” is not defined in the Act. However, “guardianship” is defined in the Act, in relation to a child, to mean the custody of the child and the responsibility for the long-term welfare of the child, including decisions concerning the education, changes in place of residence, religion, employment and the general health of the child and other rights, powers and duties before the commencement of this Act vested by law or custom in the guardian of a child. The plaintiff is not a guardian of the fourth defendant. Counsel for the plaintiff did not argue that he was the guardian of the fourth defendant. The plaintiff has not been made a guardian of the fourth defendant under any Act or pursuant to any order of a court and at common law he is not recognised as a guardian.

[43] “[C]ustody” is defined in s 4 of the Act to mean:

… the responsibility for the daily care and control of the child, including decisions concerning accommodation, attendance at school, clothing, feeding, transportation, behaviour and urgent or routine health needs of the child;

[44] The definition of custody under the Act is similar to the notion of legal custody as opposed to actual custody. In Wedd v Wedd [1948] SASR 104, the court at 106 – 107 said, “Custody essentially concerns control, and the preservation and care of the child’s person, physically, mentally and morally; responsibility for a child in regard to his needs, food, clothing, instruction and the like.” Under the Act the person who has custody of a child is the person who has responsibility for the care and control of the child not the person who simply has actual care and control of the child. Responsibility means legal responsibility for the care and control of the child. In the context of s 36(4) of the Act it means the person or persons having legal responsibility for the care and control of the child immediately prior to any steps being taken by the Minister under the Act or orders being made by the Family Matters Court. “Responsibility” does not mean moral or de facto responsibility. The concept recognises that from time to time a child may actually be under the care and control of someone other than the person having the responsibility for the daily care and control of the child for the purposes of the Act. For example, teachers or carers or relatives may from time to time have actual care and control of a child.

[45] The most important question in this proceeding is whether the plaintiff is a person having the responsibility for the daily care and control of the child, including decisions concerning accommodation, attendance at school, clothing, feeding, transportation, behaviour and urgent or routine health needs of the child. The father of a legitimate child was at common law sole guardian and was accordingly entitled to the child’s physical custody until the child attained the age of majority: Hewer v Bryant [1970] 1 QB 357 at 373. In the case of an illegitimate child, the mother had a right of custody during the time of nurture: R v Soper (1793) 5 Term Rep 278; R v Hopkins (1806) 7 East 579; 103 ER 224. Under s 61C and s 61B of the Family Law Act both the third defendant and the father of the fourth defendant have parental responsibility for the fourth defendant which means that they have all the duties, powers, responsibilities and authority which by law parents have in relation to children. Parental powers relate to both the person and the property of the child; custody, care and control of the person and guardianship of the property of the child: Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 183-4. So that the third defendant and arguably the father of the fourth defendant have the responsibility for the daily care and control of the child, including decisions concerning accommodation, attendance at school, clothing, feeding, transportation, behaviour and urgent or routine health needs of the child. Such powers and duties usually exist and do not disappear until a child reaches the age of majority: Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218. Legal responsibility for such matters is not acquired merely by a person cohabiting with a mother who has her young child in her custody. The plaintiff is not a person having the custody of the fourth defendant nor is he a party to the proceeding in the Family Matters Court.

[46] Although the plaintiff is not a party to the proceeding in the Family Matters Court it would seem that just as the maternal grandparents have a sufficient interest to be present in court so does the plaintiff: s 32 of the Act. He does so because he is cohabiting with the third defendant who is the fourth defendant’s mother. I make no direction about this. However, after hearing the parties, the presiding magistrate may wish to give further consideration to allowing the plaintiff to remain in the Family Matters Court on 14 June 2006 and at any subsequent review of the orders of the Family Matters Court. The Family Matters Court may be assisted by the plaintiff’s presence in court.

[47] Subject to any orders of the Family Matters Court and his bail conditions and provided that he has the authority of the third defendant, the plaintiff may have actual care and custody of the fourth defendant or access to the fourth defendant. He may also choose, as he has already done to some degree, to maintain and advance the welfare of the fourth defendant. The third defendant may not authorise the plaintiff to harm the fourth defendant and the plaintiff must behave lawfully and exercise the appropriate standard of care when he has the actual care and custody of the fourth defendant.

[48] Those acting for the Minister should also take steps to ensure that the fourth defendant’s father is notified of the proceeding in the Family Matters Court prior to 14 June 1996.

Orders

[49] The plaintiff’s claims for an order in the nature of certiorari, a declaration that he is a party in the proceeding in the Family Matters Court and to be joined as a party to the proceeding in the Family Matters Court are all dismissed. I will hear the parties as to costs.