CJ v Department of Human Services
[2004] VSC 317
•9 August 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 17 of 2004
| CJ | Appellant |
| v | |
| DEPARTMENT OF HUMAN SERVICES | Respondent |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 AUGUST 2004 | |
DATE OF JUDGMENT: | 9 AUGUST 2004 | |
CASE MAY BE CITED AS: | CJ v DEPARTMENT OF HUMAN SERVICES | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 317 | |
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Infants and Juveniles – Appeal from interim accommodation order made by the Children's Court of Victoria – Conditions imposed pending contested hearing – Objection by mother and children to conditions leading to Department of Human Services being involved – No error shown – Appeal dismissed – Section 80B of the Children and Young Persons Act 1989.
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APPEARANCES: | Counsel | Solicitors |
| The Appellant appeared in person | ||
| For the Respondent | Mr D.E. Whitchurch | Kordell Lawyers |
| For LJ | Ms C.M. Clough | Melanie R Senior |
| For JJ | Ms M.F. Brenton | Nevett Ford |
| For TJ | Ms L. Athanasopoulos | Baird and McGregor |
HIS HONOUR:
This is an appeal under s.80B of the Children and Young Persons Act 1989 ("the Act"). The appellant is CJ, who is the mother of four children: JJ, born 18 November 1998; LJ, born 31 August 1990; TJ, born 19 June 1996; and AJ, born 22 February 1998.
CJ has brought her own notice of appeal, perhaps with some assistance from others, but the affidavit in support is limited in the material that it puts before the court on the appeal, and I will come back to that issue later. CJ appeared on her own behalf.
The three eldest children were separately represented by counsel, and they all supported the appeal by CJ. The Department of Human Services, which was named as the respondent, has appeared by counsel and opposes the appeal.
One of the real difficulties facing the court on this appeal is the lack of evidentiary material put before it in support of the appeal. I now quote from the notice of appeal. First of all it stated that the appeal was to this court under s.80B of the Act against the decision of the Children's Court of Victoria made on 28 July 2004. It then read as follows:
"The order appealed against was an interim accommodation order made in respect of the children, TJ, JJ and LJ, until 13 September 2004, and that they be placed in the care of CJ pending that hearing. The orders are attached. The appellant appeals against the conditions of the order (Exhibit E). The appellant appeals on the following grounds:
1.That the appellant does not agree that DHS needs to be involved in her and the children's lives.
2.That the appellant and the children do not want support services/counselling directed by the Department of Human Services.
3.The applicant seeks that the interim accommodation order be stayed."
In her affidavit in support of the appeal CJ referred to the fact that she was the appellant, to the interim accommodation order made in the Children's Court sitting at Ballarat on 28 July 2004, and to the fact that she was appealing against that order on the grounds stated. She then goes on to say as follows:
"4.That the children do not want visits from the Department of Human Services. They feel intimidated by their involvement and want to re-locate whenever they are aware that the Department of Human Services know their place of residence.
5.That the children are fearful of being abused if placed in care, as they have previously been abused whilst in care.
6.That the mother is willing to access support services and counselling services for herself and the children as deemed appropriate by her and not by the Department of Human Services.
7.That the children refuse to attend any counselling that is directed by the Department of Human Services. They feel intimidated by reports from counselling being given to DHS. The children wish counselling to be confidential and not have information passed on to the Department of Human Services.
8. That the appellant seeks that the order be stayed."
On behalf of the respondent, an affidavit was sworn by Nicole Anne Sobey, who is a child protection worker with the Department of Human Services ("the Department"). That affidavit sets out an account of the situation of CJ and her four children and refers to a further individual by the name of DM, who lives in the family home with the mother and the children.
Although some background was given about the history of this application, Ms Sobey's affidavit also did not assist this Court in understanding in a proper evidentiary way what was before the Children's Court on the earlier occasions. What I can understand from the history is that on 23 June 2004 protection applications by apprehension were issued in the Children's Court at Ballarat concerning all of the four children. The grounds on which each application was made were those to be found in s.63(c) of the Act, which refers to the likelihood of physical harm, and s.63(e) of the Act, which refers to the likelihood of emotional or psychological harm.
On that occasion, 23 June 2004, one might be able to glean from the material that there was an allegation involving DM, to the effect that he had made certain threats of violence, including to blow up the house, and that the children would be "going down with him". This incident appears to have been provoked by the fact that the family and DM were being evicted from the accommodation that they then enjoyed.
Originally, as far as I can understand it, all four children were placed in care, but on 5 June, when the interim accommodation order came back to the Children's Court, the older two children, the two girls, were returned to their mother's care. There were further appearances on 12 July and 26 July, and then on 28 July the two younger children, the two boys, were returned to their mother's care and certain conditions were imposed. The further hearing of the interim accommodation order was adjourned to 13 September 2004 in the Children's Court at Ballarat.
Unfortunately, whilst it would seem that it is common practice, not only in the Children's Court but also in this court sometimes on appeals when situations dictate it, that the material before the court is often more by way of assertion or statement from the Bar table rather than material in proper evidentiary form, the difficulty that has arisen in this case is that there is a dispute between the parties as to what was before the court on the initial occasion on 23 June and then on the last occasion on 28 July, from which order the appeal is brought.
Gillard J, in a decision of Purcell v RM[1], a case involving an appeal by the Department in a matter of great urgency, accepted, as I read his decision, that the strict rules of evidence just could not apply in order for the appeal to be put before the court. But there was, as I understand the facts in that case, a short affidavit which gave some history of what had occurred before the Children's Court. Unfortunately, I have no such material, and what has been said on behalf of the children is that the conditions were basically imposed by the court without debate, and certainly not by consent, whereas Mr Whitchurch of counsel for the Department has told me that there was discussion about the conditions and in fact some alterations were made to the conditions after that discussion.
[1][2004] VSC 14.
It is difficult, where a person is representing herself, for her to understand what is required. It is also difficult for her, no doubt in a stressful hearing, even if she had been aware that such material was required, to be able to accurately and in sufficient detail record what did or did not happen on 28 July, if not also on 23 June. Nevertheless, this lack of evidence does cause a real difficulty for the Court in this case. The problem with Ms Sobey's affidavit is that it appears that she was not present in court, so that much of what she has had to say about these events is not from personal knowledge.
Nevertheless, as no one has sought to adjourn the proceedings to file further affidavit material, I think it is appropriate to continue as best I can with the appeal, trying to understand, from what I have been told, largely from the Bar table, the competing considerations.
The basic issue from the family's point of view in respect of the order of 28 July is that CJ and her children, it would appear, have lost trust in the Department, they feel intimidated by the Department, they do not want to work with the Department and they do not want any involvement of the Department in their family life.
The interim accommodation order made on 28 July, as I have said, followed an order that the two boys return to their mother's care, so in reality all that is being appealed against is not the making of the order itself but the conditions that were imposed by the magistrate pending the further hearing on 13 September. It is important for the record to recite what those conditions were. They read:
"1.Mother must accept announced and unannounced visits from and co-operate with DOHS.
2.Mother must accept support services as directed by DOHS and DM should be invited to participate in any relevant services offered to the family by DOHS.
3.Mother must advise DOHS of any change of address at least 24 hours before such change.
4.In relation to the children TJ and/or J, the mother must allow the child to attend for assessment and treatment with Take Two Service or other counselling services as directed by DOHS and allow report to be given to DOHS.
5.Mother must not expose the children, or allow DM to expose the children, to physical or verbal violence, including any such abuse from themselves.
6.Mother must not threaten, verbally abuse or assault DOHS staff, nor cause DM to threaten, verbally abuse or assault DOHS staff.
7.Mother must ensure the children attend school on time on each school day, unless the children or any of them are ill and a medical certificate is obtained and provided to the school within 24 hours of such absence.
8.Mother must not hit or hurt the children or any of them for any reason, nor cause or allow DM to hit or hurt the children or any of them."
CJ told me that she agreed that the children should attend school. She also said that she was aware that counselling would be of assistance and that she would attempt to arrange such counselling through other sources apart from the Department, possibly through Crimes Assistance, but, as far as I understand the situation, that is merely an expression of intention and has yet to be acted upon. CJ also informed me, as I have already stated, that the children felt intimidated by the Department being able to visit the family in their accommodation, and because the children were upset by the idea, she did not like the fact that any counselling that they had, if arranged by the Department, would be not confidential but could be revealed to the Department.
The important consideration in my mind is that this order is only pending a further appearance on 13 September. Mr Whitchurch sought further information from the Ballarat Court and was able to inform me that the further hearing of the interim accommodation order was set down on that day with possibly two hours being allowed for that, if needed, but that it was unlikely that the protection order would be finalised on that day, if it was to be a contested matter.
As I have already said, counsel for each of the children informed me that they had received, as best they could, firm instructions from their respective clients that the children opposed any involvement in their lives by the Department. Section 87 of the Act provides that the Court is to have regard to certain matters in dealing with a protection application. There are a number of relevant sub-sections. As far as practicable, the Court:
"(aa)must have regard to the need to protect children from harm and to protect their rights and promote their welfare";
"(a)must have regard to the need to give the widest possible protection and assistance to the family as the fundamental group unit of society and, accordingly, must ensure that intervention into family life should be to the minimum extent that is necessary to secure the protection of the child";
"(d)must have regard to the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance";
"(e)must take into consideration the effect of the finding or order on the stability of family relationships and the welfare and interests of the child"; and
"(i)must consider any wishes expressed by the child and give those wishes such weight as the Court considers appropriate in the circumstances".
Given CJ's expressed view that she accepts that the children should attend school and that their education should be a high priority, it seems rather surprising that, if only formally, there was opposition to the imposition of condition 7, which related to CJ ensuring that the children attend school. Equally, it seemed to me that really there was no reason that could be put forward against conditions such as not exposing the children to physical or verbal violence and not hitting or hurting the children. Of course, in the absence of some reason for imposing such orders, orders or conditions should not be imposed, but in so far as the history is such as I have indicated, there may be an appropriate basis for those orders.
The real debate, it seemed to me, came down to conditions 1, 2 and 4, which give the Department this involvement with the family that is so strenuously objected to by all members. In terms of the requirement that TJ and/or J attend for assessment and treatment with Take Two Service or other counselling service as directed by the Department and to allow a report to be given to the Department, there was some debate about whether that would actually occur, given the demand on counselling services, before 13 September 2004. It was also pointed out that if a child is unwilling to participate in counselling, it is very unlikely that anything is going to be achieved. I have therefore thought about whether or not conditions 1, 2 and 4 could be deleted.
Gillard J, in the decision I have already referred to, said that one of the matters which the court should take into account and give weight to was the decision of the Magistrate below.[2] Gillard J referred to a decision of Beach J in Hien Tu v Secretary of the Department of Human Services where his Honour said:
"The Children's Court is a specialist court presided over by Magistrates experienced in matters affecting young children, with ready access to experts in the field of child care. It is beyond doubt that Magistrates at the Court become very skilled in dealing with children and assessing the veracity of evidence given by them in Court and the complaints they make, particularly complaints of sexual abuse. This Court should be reluctant to interfere with orders the court made in such matters, particularly interim orders which are still subject to further review by the Children's Court itself, and should only do so where it is abundantly clear that some significant error has been made."[3]
Gillard J then continued:
"I would not raise the hurdle as high as that. What I would say is that weight should be accorded to an experienced Magistrate's decision. … Speaking for myself I take the view that weight should be accorded to decisions made by Magistrates experienced in this area."[4]
[2]Purcell v RM [2004] VSC 14 at [27]
[3]Unreported, 23 February 1999 at [21]
[4]Purcell v RM [2004] VSC 14 at [28]
I refer to the conclusion of the quote from Beach J's decision, where his Honour said that there should only be interference by this court where it is abundantly clear that some significant error has been made. As I have previously outlined, the difficulty confronting me is that on the limited material it is difficult for me to say whether or not there has been some significant error, or whether the decision of the magistrate was entirely justified.
Taking into account what material I do have, and having heard what has been said from the Bar table by way of statement of fact and submissions of law, and bearing in mind that these conditions are only imposed pending the further hearing of the interim accommodation order on 13 September, I am not satisfied that there has been any error made in the imposition of the conditions. In those circumstances, I do not think it appropriate for me to fiddle with the various conditions and delete one or more without any real basis for saying that the magistrate was in error.
In reaching that conclusion I am not unmindful of the view expressed by CJ on behalf of her children and the submissions of counsel on behalf of each of the three older children that they resent the involvement of the Department in their lives and that they feel intimidated by that involvement and do not wish to participate in counselling provided by the Department. But, giving what weight one should as required by the Act to the views of the children as expressed through their counsel and through their mother, I am not satisfied that the continued involvement, at least up until 13 September, by the Department is not in the best interests of the children.
The appeal will therefore be dismissed.
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