Carseldine v Director of Department of Children's Services [1974] HCA 33

High Court of Australia Barwick C.J. McTiernan, Menzies, Stephen and Mason JJ. Carseldine v Director of Department of Children's Services [1974] HCA 33

ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court of Queensland set aside and in lieu thereof order that the appeal to that Court be allowed with costs, that the orders made by Andrews J. on 9th November 1973 be set aside, and that the appellants' application for custody be remitted to the Supreme Court for hearing, costs of the proceedings already held before Andrews J. to be in the discretion of the Court hearing the application for custody.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 19 Barwick C.J.

I have had the advantage of reading the reasons for judgment prepared for delivery in this matter by my brother Mason. I agree with his conclusion that the inherent jurisdiction of the Supreme Court of Queensland to make an order as to the custody of an infant is not displaced by ss. 47, 55 and 58 of The Children's Services Act, 1965-1973 Q., or by the action taken by the Director of the Department of Children's Services under s. 47 of that Act. I agree entirely with the reasons which my brother gives for that conclusion. In my opinion, the Supreme Court of Queensland did not lack jurisdiction to entertain the application made in this case by the appellants, such application being regarded as having been brought on behalf of the infant children. I also agree with my brother's reasons in this respect and with his concurrence with the reasons and judgment of Wanstall J. in Re L. (An Infant) [26] .

1. [1958] Qd.R. 489.

I would allow the appeal and remit the application to the Supreme Court of Queensland for hearing.

McTiernan J.

This appeal is from a judgment of the Full Court of the Supreme Court of Queensland dismissing an appeal from a decision of Andrews J. The matter involves a consideration of The Children's Services Act, 1965-1973 Q.. It is an application by the appellants for custody of four children, of whom the appellants are the maternal grandparents. The appellants issued out of the Supreme Court of Queensland an originating summons seeking an order for the custody of the children, naming the children's mother (the appellants' daughter) as the respondent to the summons. Andrews J. made an interim order giving custody of the children to the appellants and adjourned the hearing of the summons. The present respondent Director applied by notice of motion to have the interim order set aside on the ground that Andrews J. had no jurisdiction to make the order, since, following an application under s. 47 of The Children's Services Act, 1965-1973 made by their mother, and a declaration by the Director under that section the children had been admitted to the care and protection of the Director and continued to be under his care and protection. Andrews J. held that in those circumstances he had no jurisdiction to make an order granting custody of the children to the appellants and on appeal to the Full Court his decision was affirmed.