Christensen v Christensen[1999] QCA 241

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 5239 of 1998

Brisbane

BETWEEN:

VALERIE JOYCE CHRISTENSEN

(Applicant) Appellant

AND:

NEIL STEPHEN CHRISTENSEN

Respondent

McMurdo P

McPherson JA

Shepherdson J

Judgment delivered 2 July 1999

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPEAL DISMISSED WITH COSTS.

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 2 July 1999

1. The appellant and respondent were married and had five children including John who was born on 11 February 1970 and is now 29 years old Sadly, when only five weeks old John contracted bacterial meningitis and was left with physical and intellectual disabilities Mr and Mrs Christensen separated on 20 February 1980 and John, who had just turned 10, resided with his father John has remained in the primary care of his father since the separation Mr and Mrs Christensen divorced in 1982

2. The relationship between the appellant and respondent since separation has not been a happy one Custody of the five children was contested and on the 23rd of February 1983 Mr Justice Underhill ordered that Mr Christensen have custody of the five children.

3. In 1984 the appellant reapplied for the custody of her youngest children including John and after a two day hearing the appellant's application was dismissed by Mr Justice Bulley on 5 July 1985.

4. Since 1987 John has received assistance as an "intellectually disabled citizen" under the Intellectually Disabled Citizens Act 1985 in that his interests have been represented by Mr Hugh Carter "the legal friend".^[1]

5. On 20 August 1993 the respondent petitioned the Supreme Court for a declaration that John was mentally ill and incapable of managing his estate and that the respondent be appointed as the committee of John's person under Schedule 5, cl 4 Mental Health Act 1974 The petition was opposed by the appellant, who for some years has passionately believed that there is therapy available which would assist John in significantly improving his physical and mental skills and his quality of life. She continues to hold these views which have led her to make the application before the Judge below and to pursue this appeal. The respondent does not share the appellant's optimism and believes that John should be permitted to enjoy his life without being subjected to an invasive regime of constant exercise and assessment Regrettably the relationship between the parties has become such that it is impossible for them to reach amicable agreement as to what is in John's best interests.

6. On 13 September 1993 Dowsett J heard the petition and after considering the submissions on behalf of the respondent/petitioner and the appellant and the material before him made the following order:

"the petitioner by his Counsel having undertaken to permit, participate, encourage and supervise performance of the regime suggested by Kaye Wayper as detailed in exhibit 'KW5' to her affidavit filed herein on the third day of September 1993 for a trial period of six weeks and thereafter for so long as Mr Carter considers appropriate, such undertaking to be conditional upon the cost thereof being met by either a governmental agency or the medical benefits fund or Valerie Joyce Christensen.

IT IS ORDERED:

1. That JOHN FREDERICK CHRISTENSEN be declared a mentally ill person incapable of managing his estate.

2. That NEIL STEPHEN CHRISTENSEN, be appointed as the committee of the person of JOHN FREDERICK CHRISTENSEN.

3. that VALERIE JOYCE CHRISTENSEN have access to JOHN FREDERICK CHRISTENSEN as agreed between herself and NEIL STEPHEN CHRISTENSEN but not to be less than each alternative weekend between the hours of 6 pm Friday and 6 pm Sunday, such access to be exercised in Mackay unless otherwise agreed.

4. that VALERIE JOYCE CHRISTENSEN have access to JOHN FREDERICK CHRISTENSEN to permit DR E.A. FREEMAN to examine JOHN FREDERICK CHRISTENSEN when DR E.A. FREEMAN is in Mackay upon VALERIE JOYCE CHRISTENSEN giving 7 days notice in writing to NEIL STEPHEN CHRISTENSEN regarding such arrangements.

5. that there be no order as to costs."

7. In 1995 the appellant filed a summons to vary the order made by Dowsett J by putting in place a 12 month therapy programme recommended by Dr Freeman which required three to four hours of physiotherapy exercises daily, as well as speech therapy exercises and educational activities to occur at various intervals throughout the day, five days per week The 12 month trial therapy programme was to be carried out by the appellant and volunteers, with supervision at ten day intervals by physiotherapist Mr Bernard Mullan and an assessment of John by developmental physiotherapist Ms Kaye Wayper every three months.

8. The appellant filed a further summons in that action and as a result on 15 December 1995 Helman J ordered by consent that the appellant be at liberty to arrange for John to undergo -

"(a)one assessment by a Physiotherapist;

(b)one assessment by a Speech Therapist;

(c)one assessment by an Occupational Therapist;

(d)one assessment by Mackay TAFE in relation to literacy, numeracy and computers."

The appellant was to be responsible for payment of all fees Other orders were made to assist preparation for trial The order was silent as to costs.

9. The appellant filed a further summons and on 26 September 1996 Moynihan J ordered by consent that the appellant be at liberty to arrange for John to undergo an assessment by Dr G Boyce and Dr A Ganora; that she be responsible for the payment of all fees in connection with the assessment and that the respondent's solicitors be at liberty to write to Drs Boyce and Ganora to inform them of the respondent's position in relation to the proposed therapy programme. Other orders were made, directed to the preparation for and conduct of the trial The order was again silent as to costs.

10. On 10 June 1997 the parties were referred to mediation by Fryberg J Hardly surprisingly, but none the less regrettably, the mediation was unsuccessful.

11. The appellant's summons to vary the order made by Dowsett J was heard by Demack J in Rockhampton on 18 May 1998 His Honour dismissed the application for variation of the orders and ordered the appellant pay the respondent's costs of and incidental to the application to be taxed.

12. The appellant appeals from that order on the grounds that:

"the decision of Justice Demack that the hearing of this matter is outside his Jurisdiction is incorrect.

The Court does have Jurisdiction under The Inherent Parens Patriae Jurisdiction of the Supreme Court of Queensland to hear this matter and make orders."

The appellant was also given leave to amend her notice of appeal, without objection by the respondent, to appeal against the costs order made by Demack J; to review the conduct of the committee in refusing to consider the combined programme of a 12 month period proposed by the appellant; and to review the conduct of the Legal Friend in failing to give correct legal advice to the appellant and the respondent concerning the originating summons of 1995 and concerning a preamble in the order of Dowsett J, and to order costs against the Office of the Legal Friend in respect of the hearing before Demack J. The appellant also submits that the costs of this appeal should either be ordered against the Legal Friend or that there be no order as to costs.

13. Ms Whitman from the Office of the Legal Friend appeared initially to represent the interests of John Despite the content of the amendments to the notice of appeal, she did not oppose them stressing that she appeared:

"amicus curiae to provide any assistance that might be requested of me from a historic context."

Ms Whitman then sought and was given leave to withdraw although she remained in the vicinity of the Court throughout the appeal in case her assistance was required.

14. The appellant's first argument is that the Judge below, contrary to his ruling, did have the power to make the orders sought as nothing in Schedule 5 of the Mental Health Act 1974 interferes with the inherent parens patriae jurisdiction of the Supreme Court.

15. Dowsett J ordered that the respondent be appointed as a committee of the person of John under Schedule 5, cl 4(2) Mental Health Act 1974. The appointment of the respondent as committee of the person of John renders the respondent capable of making all decisions for John other than decisions as to the management of his estate.

16. There is no doubt that the appellant is well motivated and desires only to improve John's quality of life and see him become more self-sufficient. The difficulty is that neither the respondent (the committee of John's person) who is also highly motivated and concerned for the welfare of John, nor John himself, agree with her The appellant's view is supported to some extent by a range of medical and paramedical evidence, as are the views of the respondent. Demack J found, after a careful review of all material before him, that there was nothing to suggest the respondent was not properly discharging his obligations towards John, adding:

"There is no doubt concern on Mrs Christensen's part that, with the changing knowledge that society has about the way in which disabled people can be trained to function within society, some of this might be available also for John.

However, the Court has no jurisdiction, as I understand it, to make orders which in a sense are experimental because there is no knowing whether they will produce any benefit to John.

The responsibility for day-to-day decision making under Mr Justice Dowsett's order was given to [the respondent] and, as I have indicated, there is nothing on the material to show that [the respondent] has acted other than responsibly in the discharge of [his] obligation."

17. His Honour's use of the word "jurisdiction" was perhaps confusing.^[2]  It is clear from reading his Honour's ex tempore reasons in context that his Honour was not ruling that there was no inherent parens patriae jurisdiction but rather that to be able to make the order sought by the appellant it was not sufficient that the orders might be in the interests of John: they must be positively beneficial to his interests.

18. The inherent jurisdiction which includes the parens patriae jurisdiction of the Supreme Court is given statutory recognition in s 201 Supreme Court Act 1995 which represents the relocation of s 22 of the Supreme Court Act of 1867 (see s 2 Supreme Court Act 1995) Section 201 is expressed in the language of 1867 which is by modern standards antiquated and offensive and provides:

"The said court shall have equitable jurisdiction within the State and such power and authority to do exercise and perform all acts matters and things necessary for the due execution of such equitable jurisdiction as is possessed by the Lord High Chancellor or other equity judges of England in the exercise of similar jurisdiction within the realm of England and also to do all such other acts matters and things as can and may be done by the said Lord High Chancellor or other equity judges within the realm of England in the exercise of the common law jurisdiction to him or her belonging and to appoint guardians and committees of the persons and estates of infants and of natural-born fools lunatics and persons deprived of understanding and reason by the act of God and unable to govern themselves or their estates and for that purpose to inquire into hear and determine by inspection of the person the subject of such inquiry or by examination on oath or otherwise of the party in whose custody or charge such person may be or of any other person or persons or by such other ways and means by which the truth may be best discovered and to act in all cases whatsoever as fully and amply to all intents and purposes as the said Lord High Chancellor or other equity judges or the grantee from the Crown of the persons and estates of infants and lunatics natural‑born fools and persons deprived of understanding as foresaid may now lawfully do."

For a history of the Crown's parens patriae jurisdiction and the manner in which it came to encompass adults who were mentally incompetent and became part of the Lord High Chancellor's jurisdiction in England see the judgment of La Forest J in re E.^[3] In Carseldine v Director of Department of Childrens Services (1974) 133 CLR 345 at 350 and 351, McTiernan J discussed the equitable jurisdiction invested in the Supreme Court of Queensland by s 22 of the Supreme Court Act of 1867 and said:

"The equitable control over infants, and the guardians of infants, arose in its modern form after the abolition of the military tenures, and the court of Wards and Liveries The equitable jurisdiction was based, it is said, not on any inherent jurisdiction, but upon a special delegation by the crown of its prerogative right, as parens patriae, of looking after their interests In 1696 in the case of Falkland v Bertie (per Lord Somers LC) (1696) 2 Vern 333 at p342 [23 ER 814 at p 818], it was said 'In this court there were several things that belonged to the King as pater patriae, and fell under the care and direction of this court, as charities, infants, idiots, lunatics, etc Afterwards such of them as were of profit and advantage to the King were removed to the Court of Wards by the statute; but upon the dissolution of that court, came back again to the Chancery' This view has generally been accepted as the origin of this jurisdiction of the court ...".

Nothing in Schedule 5 of the Mental Health Act 1974 detracts from the inherent parens patriae jurisdiction of the Supreme Court: the jurisdiction is carefully guarded and the courts will not assume that it has been removed by legislation: see Re E.^[4]

19. The parens patriae jurisdiction is not to resolve disputes between litigants but to protect the welfare of those needing protection because of an inability to protect themselves, such as children or intellectually disabled citizens, here John. All decisions to be made in the exercise of the jurisdiction must therefore be based on the principle that John's welfare is the paramount consideration: see Marion's Case.^[5]  This requires that the jurisdiction be exercised with caution: see Re E.^[6] The parens patriae jurisdiction will be invoked when it is clear on the material that the order sought is positively in the interests of a child or person within the Court's protection: see Re B (A Minor),^[7] Re A (a child);^[8] Re W (An Infant)^[9] and Borek v Anastoupolou.^[10]  In Marion's Case^[11] Brennan J (as he then was) said:

"The parens patriae jurisdiction has become essentially protective (In re McGrath (Infants) [1893] 1 Ch 143 at 147-148: [1892] 2 Ch 496 at 510-511) in nature and protective orders may be made either by the machinery of wardship (Fountain v Alexander (1982) 150 CLR, per Gibbs CJ, at 626) or by ad hoc orders which leave the guardianship and custody of the child otherwise unaffected (In re N (Infants) [1967] Ch 512 at 531;  In re L (An Infant) [1968] P 119 at 156-157) The court is thus vested with a jurisdiction to supervise parents and other guardians and to protect the welfare of children (Johnson v Director‑General of Social Welfare (Vic) (1976) 135 CLR 92).

Although the jurisdiction is extremely broad, it is exercised cautiously in the manner stated by Fitzgibbon LJ in In re O'Hara [1900] 2 IR 232 at 240 and adopted by the House of Lords in J v C [1970] AC 668 at 695:

'In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded.'

There must be some clear justification for a Court's intervention to set aside the primary parental responsibility for attending to the welfare of the child."

The same principles must apply to the committee of the person of an intellectually disabled adult citizen like John: the parens patriae jurisdiction of the Court must be exercised cautiously and the therapy which the appellant requests for John will only be ordered where the Court has clear justification for setting aside the respondent's decision not to permit that therapy and is well satisfied that it is in the best interest of John.

20. The learned primary judge was conveying in his reasons that the appellant had not positively shown a clear justification for the Court to interfere with the respondent's decisions in respect of John: the orders sought may be, but were not necessarily, for the welfare of John and therefore the Court could not give the orders sought under a proper exercise of its parens patriae jurisdiction. In other words the jurisdiction can only be invoked when a need is demonstrated. The voluminous material before this Court does not demonstrate any reason to doubt the learned primary judge's conclusion that the respondent "has acted other than responsibly in the discharge of [his] obligation" as committee of John nor that the Court's intervention was needed to positively further John's welfare. The appellant's main complaint must fail.

21. The appellant's second complaint is in respect of the costs order made against her below Section 253 Supreme Court Act 1995 provides:

"No order made by any judge of the said court by the consent of parties or as to costs only which by law are left to the discretion of the judge shall be subject to any appeal except by leave of the judge making such order."

When informed of this section, the appellant indicated she was not requesting an adjournment to make an application to Demack J for leave, but at the conclusion of the appeal hearing, in reply, she changed her mind and applied for an adjournment, which was refused with reasons Section 253 of the Supreme Court Act 1995 has the result that the costs order of Demack J may not, without leave, be subject to any appeal: see Re Golden Casket Art Union Office.^[12] The appellant was aware there may be costs implications for her in pursuing her claim: the respondent's solicitors informed the appellant that the respondent intended to seek costs of and incidental to the application before Demack J which the respondent regarded as vexatious The appellant has not demonstrated any reason why leave to appeal from the unexceptional costs order of Demack J should be given. Of course, had the appellant been successful on the substantive ground of her appeal, it is likely the costs order made against her below would have been reversed, consistent with the usual rule that costs follow the event. The appellant's complaint as to the costs order below has no substance.

22. The appellant further submits that this Court should order the costs below and of this appeal be paid by the Office of the Legal Friend because it and a community legal service failed to give her correct legal  advice As to the costs below, the appellant cannot overcome the hurdle caused by s 253 of the Supreme Court Act 1995. It is a matter for the appellant whether she wishes to take separate action against these lawyers: this Court cannot assist her in that respect. In any case there seems no merit in the claim, at least on the  material before this Court In correspondence from the Office of the Legal Friend on 20 June 1994 the appellant was told:

"As you are already aware, it is not possible for me to consent to anything that is less than professional treatment and care.

I have spoken to Neil who is willing to comply with the directions of Justice Dowsett as am I.

Should you choose not to comply, the consequences would be quite major for you in terms of costs of any future legal action contemplated by you."

23. As to the costs of the Appeal, the Legal Friend wrote to the appellant on 27 January 1999 in these terms:

"I encourage you to seek legal advice with respect to your proposed Appeal Such a step is not legally appropriate and will, I have no doubt, involve you in increased legal costs in circumstances that can have no true benefit for John."

24. The appellant finally submits there should be no costs order against her in respect of this appeal. For the last 16 years the appellant has been agitating for a treatment programme which she believes will improve John's capacity for and quality of life. The respondent, apparently out of equally noble motives, has resisted this. In 1993 Dowsett J noted that the friction between the appellant and the respondent could hardly be in John's interest and must also be very distressing for them Those comments remain apposite. The appellant has not only brought the applications listed earlier in these reasons but has also written to the Prime Minister on several occasions, various government departments and members of Parliament, sought assistance from the Queensland Advocacy Inc.,  the Welfare Rights Centre Inc., Legal Aid Office (Queensland), the Anti-Discrimination Commission, the Human Rights and Equal Opportunity Commission, the Disability Discrimination Commissioner and the Intellectually Disabled Citizen's Council. Until the costs order made by Demack J below, the respondent has throughout borne his own legal expenses. Unnecessary costs were incurred by the appellant in the preparation of this appeal by the filing of unwarranted material which was continually amended, resulting in a ridiculously burdensome five volumes of record books, totalling 1273 pages. Many more pages of material were handed up at the Appeal hearing. Although one cannot help but feel sympathy for the appellant, who deeply loves her son and has always acted out of altruistic motives, it would be unjust to the respondent in all the circumstances if this Court were to depart from the usual order that costs follow the event Accordingly, the appellant must pay the respondent's costs of this appeal.

25. I can only repeat the sentiments that have already been expressed by Dowsett and Demack JJ: if the parties can become less polarized and act co-operatively rather than adversarially, their common goal of improving John's quality of life will be more likely to be reached.

26. The appeal should be dismissed with costs.

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 2 July 1999

1. I agree with the reasons of the President for dismissing this appeal, and also with the orders that her Honour proposes.

2. I should perhaps add that where leave to appeal against costs is sought from and refused by the judge at first instance, an appeal is capable of being maintained; but it is an appeal against that refusal, and so attracts the difficulties associated with all appeals in respect of decisions involving the exercise of a discretion. Indeed, such an appeal is subject to the twin jeopardy of being an appeal (1) against the exercise of the discretion to refuse leave to appeal; and (2) against the exercise of the ordinary discretion in relation to costs.

3. In the present case, leave to appeal against the order with respect to costs was not sought by the appellant in the court below; even if it had been, I can identify no error in principle in the order made by the primary judge, which was that the appellant pay the respondent's costs of the unsuccessful proceedings which she instituted against him.

REASONS FOR JUDGMENT - SHEPHERDSON J

Judgment delivered 2 July 1999

1. I have read the separate reasons for judgment prepared by the President and McPherson JA I agree that the appeal be dismissed with costs and for the reasons each has given.