Edwards (a pseudonym) v Department of Health and Human Services and Anor
[2018] VSC 716
•20 November 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
PRACTICE COURT
S ECI 2018 02090
IN THE MATTER of section 271 of the Children, Youth and Families Act 2005
| BLAINE EDWARDS (a pseudonym) | Appellant |
| v | |
| DEPARTMENT OF HEALTH AND HUMAN SERVICES | First Respondent |
| -and- | |
| LOUISE SLATER (a pseudonym) | Second Respondent |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 November 2018 |
DATE OF JUDGMENT: | 20 November 2018 |
CASE MAY BE CITED AS: | Edwards (a pseudonym) v Department of Health and Human Services & Anor |
MEDIUM NEUTRAL CITATION: | [2018] VSC 716 |
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APPEAL — Decision of Magistrate sitting as Children’s Court of Victoria to make interim accommodation order on conditions — Appeal by father — Best interests of the children paramount — Unacceptable risk of harm to child — Magistrate’s decision affirmed — Children, Youth and Family Act 2005, s 271.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms E Mallett of counsel | Buscombe Madden Lawyers |
| For the First Respondent | Mr J Conolly of counsel | Child Protection Litigation Office, Department of Health and Human Services |
| For the Second Respondent | Mr J Hirst of counsel | Heinz & Partners |
HER HONOUR:
Introduction
By notice of appeal filed 7 November 2018, the applicant seeks to set aside an interim accommodation order made on 5 November 2018. The order placed Isobelle Edwards (‘Isobelle’), born 20 March 2018, with her maternal aunt, Emma Slater.[1] The appellant and the second respondent are the parents of Isobelle. An affidavit of Rebecca Beagley sworn 6 November 2018, solicitor for the appellant, was filed in support of the application. The second respondent supported the appellant’s appeal.
[1]Pseudonyms have also been used for the names of the child, maternal aunt, doctors and medical centres.
The grounds of appeal are:
(a) the Reserve Magistrate erred in finding that there was an unacceptable risk of harm by [sic] the child should the child remain in the care of the appellant;
(b) the Reserve Magistrate failed to properly consider the matters set out in s 10 of the Children, Youth and Families Act 2005 and give sufficient weight to matters contained in s 10 in making the decision to make the interim accommodation order;
(c) the Reserve Magistrate failed to accord procedural fairness by not permitting the appellant’s solicitor to make full submissions supporting reasons why the child should remain in parental care;
(d) the Reserve Magistrate erred in making an order which had the effect of removing the child from the care of the appellant.
The Department accepts that ground 3 is made out as the Reserve Magistrate did not permit the appellant’s solicitor to make full submissions supporting why Isobelle should remain in parental care and indicated that he had determined the matter before submissions were made by the appellant’s solicitor.
Applicable principles
A summary of the legal principles on an appeal under s 271 of the Children, Youth and Families Act 2005 is set out in Secretary to the Department of Human Services v Children’s Court of Victoria as follows:
·an appeal under s 271 (like its predecessor) is in the nature of a re-hearing on the material before the magistrate and on any other relevant material placed before the court hearing the appeal;
·for an appeal to succeed, it is not necessary for the Supreme Court to identify any error in the decision made by the magistrate — that is, a view may be taken that the decision of the magistrate was open, but nonetheless the Supreme Court thinks a different order should have been made;
·although the view of an experienced Children’s Court magistrate should be afforded respect, and weight given to it, nevertheless it is ultimately the appellate court’s responsibility to form its view on all the relevant facts and circumstances;
·although a child is only to be removed from the care of a parent if there is an unacceptable risk of harm, the existence of an unacceptable risk of harm is not the only matter to be considered all the circumstances relevant to the paramount interests of the child must be considered;
·when considering, on an appeal concerning an IAO [interim accommodation order], whether there is an unacceptable risk of harm, it is neither necessary nor usually appropriate for a court to attempt to make findings of fact about events of past alleged harm; and
·analogously to hearings for interlocutory injunctions, the court is to weigh the evidence concerning the conduct in question, consider the likelihood of it occurring in the future, consider the nature and extent of the risk of harm to the child associated with the conduct were it to occur or re-occur, and consider whether that risk is unacceptable having regard to the paramount interests of the child.[2]
[2][2014] VSC 609 (5 December 2014) (Macaulay J) [24] (citations omitted).
Procedural history
On the application of the Department in the form of a Notice of Hearing — Breach of Family Preservation Order, it was alleged that Isobelle was living in unsatisfactory conditions in terms of her safety and wellbeing as her mother had exposed her children to violence and the father had failed to comply with his reporting requirements as a registered sex offender.
In the afternoon of 2 November 2018, a bail justice removed Isobelle from the care of her parents and placed her in the care of a maternal aunt over the weekend. Following the bail justice proceeding, the paperwork for the breach proceeding was not sent through to the Children’s Court. The Department re-issued a notice of breach at Court on 5 November 2018 but it was not provided to the legal representatives of the appellant or the second respondent.
At 2.30 on the afternoon of 5 November 2018, the breach application was heard before a Reserve Magistrate. In addition to the allegations in the notice, oral submissions were made as to the alleged drug use and substance abuse of the appellant and the second respondent. The Department submitted that Isobelle was at an unacceptable risk of harm in the care of her parents for the following reasons:
(a) an altercation between the second respondent and a neighbor, which was alleged to demonstrate a deterioration in her mental health;
(b) the appellant’s non-compliance with his reporting obligations as a registered sex offender; and
(c) allegations of substance misuse.
Confidential records kept by the Department, redacted as required by the Health Services Act 1988, set out the matters relied on by the Department. The standard procedure in the Children’s Court is not to disclose these records. The records disclose more thoroughly the Department’s case. On the appeal, the records included matters occurring after the hearing on 5 November 2018 and are relied on by the Department as other relevant material on the appeal.
In addition to the order placing Isobelle with her maternal aunt pending the further hearing, the Reserve Magistrate made further orders, including that contact by Isobelle’s parents be supervised by the Department three times a week and that each of the appellant and second respondent:
(a) must submit to random supervised alcohol and drug testing as directed by the Department and must allow the results to be given to the Department; and
(b) must participate in assessment and/or treatment for alcohol and drug dependence as directed by the Department and must allow the results to be given to the Department.
The further hearing of the proceeding was adjourned for a mention in the Children’s Court on 19 November 2018.
On 15 November 2018, the Court informed the parties that the appellant’s appeal was dismissed and written reasons would be provided to the parties.
Factual background
The Department received information that there had been an altercation between the second respondent and a neighbour on 28 October 2018. It was believed that the second respondent attacked the neighbor with a wrench. The appellant’s three stepchildren and Isobelle were at the home at the time of the altercation. The appellant, a registered sex offender, resided at the home with the second respondent and Isobelle. There were further concerns in relation to drug use within the home. On 1 November 2018, the Department noted that it had been informed that the appellant was in a ‘drug induced coma nil further details’. The informant had been advised there is ‘alleged drug use by the second respondent and the appellant, intravenous heroin, speed and whatever else they can get. This is [sic] occurs every payday weekly.’
On 2 November 2018, the Department visited the home to question the appellant and the second respondent about the altercation and the other issues. Both the appellant and the second respondent acknowledge there was a physical assault with the neighbour. There are different versions of the events that occurred on that day, however, there is no dispute that an altercation occurred on the neighbour’s land between three neighbours and the second respondent, that the altercation was physical with punches thrown and involved a substantial amount of shouting at each other. One of the neighbours alleges an assault by the second respondent using a wrench, however, the second respondent disputes this account. The second respondent’s three older children usually reside with their father but he was in hospital as a result of liver and kidney failure. They were present at the home at the time and witnessed the altercation. The appellant stayed with the three children and Isobelle during the fight. He said the children became unsettled and he took them inside the house. Later on their maternal aunt and grandmother collected them. The police arrived at the property 30 minutes after the altercation and subsequently the second respondent was charged with assault and criminal damage related offences.
As well as the Department’s concern about the exposure of the children to the violence allegedly perpetrated by the second respondent, it is also concerned about the appellant’s breach of his reporting requirements as a registered sex offender. As a registered sex offender, the appellant is not to be in contact with children other than his own child. He failed to report this contact and other previous contact with his stepchildren. When the appellant was asked about his status as a registered sex offender and his lack of reporting to the police, he explained that he believed his reporting requirements were only to report if he was in contact with children unsupervised and greater than three days in a calendar year.
On 29 October 2018, the Department’s notes record that the appellant and the second respondent were stopped outside the railway station with Isobelle and a four year old child believed to be the appellant’s stepchild. The appellant had not reported that he would be in contact with the second respondent’s other children and he was to attend an interview as a result of the breach. On 1 November 2018, during a subsequent home visit by the Department, the family stated they were unaware of such a reporting requirement.
The Department’s notes record a concern with parental substance abuse (heroin) while taking care of Isobelle. On 2 November 2018, when questioned about drug use, the second respondent stated that she would take a voluntary supervised urine drug screen but then stated she wanted to speak with her lawyer first. After the Court hearing on 5 November 2018, the appellant and the second respondent were issued with a request for supervised drug screens to be completed by the next day, which was agreed to by them.
On 6 November 2018, the Department informed the appellant and second respondent that it was in receipt of information that the neighbours had seen the appellant and the second respondent ‘shoot up’ in their car and that this was a regular thing on paydays. The records also note that the relevant Department officer had been told that the appellant was at the home residence during the daytime but not during the night. Complaints had also been received of people visiting the appellant and the second respondent doing ‘pick ups–drop offs’ of drugs at their home.
The appellant stated to the Department that he had been unwell for approximately two weeks and had required the care of the second respondent. It was observed that he appeared to have a slight yellowish colour to his skin appearance. In respect of Isobelle, he said he asked for the assistance of the second respondent if he required it and they worked as a team for her night feeds.
The appellant and second respondent reported to the Department later that day as they were unable to complete the supervised drug tests at the XX Medical Centre. Their reasons were that the second respondent’s request was not in the name on her driver’s licence and the appellant’s driver’s licence had expired which was not acceptable for identification purposes. The appellant and the second respondent were informed that the XX Medical Centre was not an approved provider by the Department and they were required to attend at YY Labs which was an approved clinic.
An inspection of the second respondent’s arms showed inflammation but did not identify obvious injection sites. The second respondent claimed she suffered from eczema causing inflammation and also said she had not used any prescription cream to treat the eczema for three years. An inspection of the appellant’s arms revealed injection sites on both arms. The appellant stated these marks were as a result of blood tests for his liver issues when he attended at the XX Medical Centre between 7 to 10 days earlier. The letter from Dr Smith, referred to at paragraph [21] confirms that the appellant’s blood tests were taken some 15 days earlier on 22 October 2018 and not 7 to 10 days earlier as stated by the appellant. The appellant stated that he suffered from Hepatitis C and he was currently being tested for liver function and a treatment plan. His treating doctor was Dr Jones at the Centre and the second respondent’s doctor was Dr Collins at ZZ Practice. The appellant and the second respondent were requested to provide consents for information to be obtained from their treating doctors. Later that day, the appellant specified the doctor that could be spoken to in respect of his issues and the second respondent retracted her consent in respect of her medical practitioner, until she had spoken to her solicitor.
On 7 November 2018, the Department noted that it expected to breach the appellant for his failure to report his contact with children, other than his own child, in contravention of his registered sex offender requirements. Information from Dr Smith at XX Medical Centre in response to a letter from the Department informed the Department that: the appellant was not in a methadone programme through the Clinic; Dr Smith was not able to comment if he is on a programme through another clinic; that the appellant had a blood test on 22 October 2018 and she was unable to comment any further on any needle marks on his arms; that she referred the appellant for a supervised urine drug screen on 6 November 2018 and this was her first consultation with the appellant; and she was unable to comment further on his medical conditions and prognosis. At the hearing the Court was informed that the appellant sought to provide a supervised urine test that morning but was unable to provide a sample while under supervision.
The Department informed the Court that it is in the process of following up the appellant’s regular treating doctor by letter, but at the time of the hearing it had not yet received a response. The Department’s follow up letter asks for more particulars as to the appellant’s attendance at the Centre on 22 October 2018, whether any further information could be provided to explain the remaining marks on his arms, the appellant’s current prescriptions, and further information for completeness.
Consideration
The appellant and the second respondent reside together, which makes the risk assessment a joint risk assessment with the orders sought focused on the child’s safety and wellbeing. The application brought by the Department in the Children’s Court was made on the general basis that Isobelle is living in unsatisfactory conditions in terms of her safety and wellbeing. The application is set against the background of the altercation between the second respondent and the neighbours on 28 October 2018, the appellant’s contact with his stepchildren and ongoing non-compliance with his reporting requirements as a registered sex offender, and the allegations of drug use and substance abuse by the appellant and the second respondent. The combination of these three factors in terms of the child’s home environment establish that there is an unacceptable risk of harm to Isobelle if she remains living with the appellant and the second respondent. While at the hearing the second respondent put forward the proposal that she move out of the family home, that position is not acceptable in terms of the risk of harm to the child in the context of the allegations of drug use and substance abuse against the appellant.
The appellant characterised the Department’s position as relying on ‘undisclosed, unspecified reports of potential substance use by both parents’, however, the task of the Department, in effect, is to take account of such reports and investigate them. Having been made aware of the reports, the appellant and second respondent did not provided evidence to contradict the Department’s position in terms of the wellbeing of the child. Although submissions were made on their behalf, at the time of the hearing, neither the appellant nor the second respondent had provided the Department with the results of any supervised urine tests and their reasons for not doing so suggest that they wished to avoid taking the tests.
Notwithstanding that the Reserve Magistrate did not permit the appellant’s solicitor to make full submissions in support of Isobelle staying in parental care, the Court is satisfied, taking into account all of the matters, that there is an unacceptable risk of harm to Isobelle if she is returned to the appellant. Accordingly, the appeal is dismissed.
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