Himona (a pseudonym) v Department of Health and Human Services

[2019] VCC 2061

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Nadia Himona (a pseudonym)	Appellant
v
Department of Health and Human Services	Respondent

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JUDGE:	Judge Pillay
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2019
DATE OF RULING:	22 November 2019
CASE MAY BE CITED AS:	Himona (a pseudonym) v Department of Health and Human Services
MEDIUM NEUTRAL CITATION:	[2019] VCC 2061

REASONS FOR RULING
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Subject:  Child Protection Order Appeal

Catchwords:             Child Protection – Care By Secretary Order - Appeal – Whether children in need of protection

Legislation Cited:     Children, Youth and Families Act 2005 (Vic)
Cases Cited:            DHHS v Brown [2018] VSC 775; Blair v Curran (1939) 62 CLR 464
Ruling:  Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In Person
For the Respondent	Ms K Cullen	The Department of Health and Human Services

HIS HONOUR:

1       I now propose to read my ruling in relation to this matter of Nadia Himona[1] and the Department of Health and Human Services.

[1]A pseudonym.

2       Nadia Himona has three children who are at the centre of the dispute between her and the Department of Human Services.  They are Henry[2] born 2012, Lulu[3] born 2015, and Theo[4] born 2018.  Though the matter comes before this court as an appeal, it is a hearing de novo and the central issue can be described as an application by the Department for Care by Secretary Orders to be granted in respect of the three children.  Ms Himona opposes this and wishes for the children to come back to her and remain under her care.

[2]A pseudonym.

[3]A pseudonym.

[4]A pseudonym.

3       A short history shows that on 17 August 2018 the family division of the Children's Court made family reunification orders.[5] Those orders were in respect of the two eldest children.  The orders were made after a contest.  At issue was whether or not the Department should obtain Care by Secretary Orders.  The result was that the learned magistrate refused the Department's application and instead made family reunification orders.

[5]Respondent’s Court Book (“RCB”) 13

4       In contest was the treatment of the children by Ms Himona.  It was alleged and subsequently found by the learned Magistrate that there had been instances where Ms Himona had abused the children.[6]  That abuse stems from a number of disclosures that Henry had made which were particularised as:

[6]RCB 12

1. Ms Himona had put a pillow over his face and had also put a pillow over his sister's face. 

2. Ms Himona had put his foot in the oven.

3. Ms Himona had cut his hair and head to get maggots out. 

4. Ms Himona had thrown him and kicked him and hurt his neck. 

5. Ms Himona had made him eat a spider. 

6. Ms Himona had bathed both children in buckets.

5       In August 2017, consultant paediatrician Dr Hughes stated in a letter that Henry was observed to have at least four black eyes and a bite mark on his arm which he told his great Aunty that Ms Himona had caused.[7] 

[7]        RCB 112. The actual letter is not in the courtbook or witness statements and is referenced in the court

report dated 11 Feb 2019. While I do not have the original source document and this evidence is clearly hearsay I have relied on it as an accurate report of the doctor’s findings.

6       I have defined the above, paragraphs [4] and [5], as the “abuse allegations”.

7       The learned Magistrate found on 17 August 2018 that the abuse allegations as set out above were proven.[8]  The central issue in this case is whether the abuse allegations having been found, the only appropriate order was that of Care by Secretary.

[8]RCB 12

8       Ms Cullen of Counsel, who appeared for the Department, put the Department's case in the following ways.  First, she argued that by reason of the findings of the learned Magistrate on 18 August 2018 the finding of the abuse allegations constituted an issue estoppel which bound this court to accept those facts.[9] She then argued that in accordance with the decision in DHHS v Brown (2018) VSC 775 at paragraphs [64] to [72] that necessarily, the order to be made was for a Care by Secretary order.

[9]Blair v Curran (1939) 62 CLR 464 at [531]

9       Alternatively, she argued that if the findings as to the abuse allegations on 18 August 2019 were not an issue estoppel then this court should find the abuse allegations were true on the balance of probabilities.[10] Following from that she argued, in accordance with DHHS v Brown, the only reasonable order was a Care by Secretary order.[11]

[10]Children, Youth and Families Act 2005 (Vic) s.215A

[11](2018) VSC 775

10      Thirdly and alternatively, she argued that if the abuse allegations were not found either as an issue estoppel arising from the judgment of 18 August 2018 or were not found proven by this court, there was other sufficient material to support the making of the Care by Secretary Order.

11      Dealing with each of those matters in turn, I find firstly that the hearing in August 2018 was squarely dealing with the factual issue of Ms Himona's behaviour towards the children and was well ventilated.  I find that that judicial determination directly involved an issue of fact, which arises again for consideration in this case.  I consider that that constitutes the basis for an issue estoppel arising as to those facts, the subject of the abuse allegations.

12      Even if I am wrong about that, I consider the second limb of the argument made by Ms Cullen is proven.  The overwhelming evidence from the tendered material is that the abuse allegations were proven.  In particular, I refer to the disposition report and the case plan.[12]

[12]See the disposition report at RCB 111, 219, 263, 231, 102, 112, 219, 263, 231 and the case plan at RCB 140

13      Though much of the material before the court here could be hearsay or even hearsay on hearsay, I note that the Children, Youth and Families Act 2005 (Vic) (“the Act”) permits the reception of evidence which may not otherwise be accepted.[13]  Bearing that in mind, I accept the evidence as to the abuse allegations, set out above.  Given that finding, I consider that the decision of DHHS v Brown mandates a finding that a Care by Secretary order be made.[14]  This is because of the abuse itself and further the unwillingness of Ms Himona to acknowledge it occurred, and further to deny, during her cross-examination, that it had occurred at all.

[13]s.215(1)(d)

[14](2018) VSC 775

14      Even if I am wrong in my application of DHHS v Brown, I consider that the evidence of Mr Kennedy to be powerful. His opinion is uncontradicted. He identifies the risk posed by Ms Himona to the safety of her children to be very high. He could not be clearer than at page 25 of his report where he opines “the risk factors for the children, both from an emotional and physical perspectives, are unacceptable."[15]

[15]RCB 267

15      I have also taken into account the fact of Ms Himona's mental instability, and history of past drug abuse.  Both were denied by Ms Himona in cross-examination. This is contrary to the weight of the evidence otherwise. I find that she does have a history of mental instability as detailed in Mr Kennedy's report and a history of drug-taking.[16]

[16]RCB 60-62, 110

16 In this case, I am primarily concerned to determine if the children are in need of protection pursuant to s.274 of the Act. I consider they are, given the opinion of Mr Kennedy as to risk, the evidence which supports the physical abuse, the history of drug-taking and the history of mental illness.

17 Having considered the factors set out in s.162 of the Act I will make the Care by Secretary orders as sought as they are in the best interests of all the children. I do not consider a family reunification order to be in the best interests of all the children given the previous recent history of this matter since August 2018.

18 Given these findings, I do not need to consider Ms Cullen's supplementary submission that no reunification order for the two older children can be made given s.287A of the Act.

19      Formally, I make the following orders. 

1)        I set aside the order of Magistrate Smith dated 16 May 2019. 

2)        I make the same orders as were made by the learned Magistrate on that occasion in every particular, with an operative date of 16 May 2019.