N H v Department of Human Services

[2011] VCC 130

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. AP-10-1850

N H	Appellant
v
DEPARTMENT OF HUMAN SERVICES	Respondent

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2011
DATE OF JUDGMENT:	9 February 2011
CASE MAY BE CITED AS:	N H v Department of Human Services
MEDIUM NEUTRAL CITATION:	[2011] VCC 130

REASONS FOR JUDGMENT

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Catchwords: Appeal against permanent care order under Children, Youth and Families Act

2005 – appeal out of time – leave to appeal – whether ‘special circumstances’ exist.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person	-
For the Respondent	Mr S Gelfand	Solicitor for the Department of Human Services
HIS HONOUR:

1 In this matter, Ms NH appeals against an order of the Children’s Court of Melbourne of 22 March 2010 against a Permanent Care Order made pursuant to s.321 of the Children, Youth and Families Act 2005 (“the Act”) wherein her son, DHS, born 19 July 2007, was placed in the permanent care of carers, J and M (“the Permanent Care Order”).

2          The Permanent Care Order was handed down after a hearing conducted over six days in February and March 2010. Both the Department of Human Services (“the Department”) and Ms H were represented at the hearing.

3 Ms H seeks to appeal the Permanent Care Order to this Court pursuant to the provisions of s.328 of the Act. Section 328(6) applies later provisions of the Act, in particular ss.425 and 430 in relation to the appeal process to be undertaken. Section 425 of the Act provides that an appeal is to be commenced by the filing of a notice of appeal with the Registrar of the Children’s Court within 28 days after the date upon which the order of the Children’s Court was imposed. Section 426 provides that an appeal is to be conducted by way of re-hearing. Section 430 of the Act provides as follows:

“(1)	A notice of appeal filed after the end of the period referred to in s.425(1) or 428 is deemed to be an application for leave to appeal on the ground stated in the notice.
(2)	The appellate Court may grant leave to appeal under sub-s.1 and the appellant may proceed with the appeal if –
(a) the Court considers that the failure to file a notice of appeal within the period referred to in s.425(1) or 428 was due to exceptional circumstances; and
(b) the Court is satisfied that the respondent’s case would not be

materially prejudiced because of the delay.”

4 A Notice of Appeal in respect of the Permanent Care Order was filed on 28 July 2010, thus, more than three months outside the period prescribed by s.425(1).

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5 Ms H appeared before me in this appeal unrepresented. Pursuant to the provisions of s.430(2)(a), she bore the onus of proving that the failure to file the Notice of Appeal within time was due to “exceptional circumstances”. At the outset it was conceded by the Department that s.430(2)(b), the requirement as to material prejudice, had no application.

6          The Notice of Appeal, entitled “Notification of Appeal Lodged”, is a relatively short and simple document, describing the names of the parties, the duration of the hearing and that the appeal concerned a Permanent Care Order. The document did not provide for any grounds of the appeal to be stated.

7          After consultation with Ms H and Counsel for the Department, I determined to hear the leave to appeal as a preliminary application. She gave evidence and was cross-examined.

8          While it is not necessary for the circumstances leading up to the orders of the learned Magistrate to be examined, nonetheless I shall refer to them in short compass. Ms H has four children, B, now aged eight, D now aged six, L, now aged five, and DHS, the subject of the Permanent Care Order, now aged three. At the present time, both B and D are in the custody and care of their father pursuant to an order of the Family Court of 2010 which I am advised was made after a contested hearing. Ms H has regular access to the boys, and assists their father in their care.

9          The next sibling, L, was born in February 2006. He has significant health issues and currently resides in special care placement although he has had significant periods of his life in hospital.

10        DHS, the subject of the Permanent Care Order, was born on 20 July 2007. A Safe Custody Order in respect of his care was made at the Melbourne Children’s Court on 23 July 2007. He has remained in the custody and care of his current carers, J and M, since that time. Ms H has had access to him

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regularly. J and M were assessed by the respondent Department and
endorsed as suitable in June 2009.

11        The learned Magistrate, in her decision, determined that her disposition was made upon the basis of DHS’s best interests. She commented that DHS was loved and cared for both by his carers and his mother. The learned Magistrate commented that Ms H’s commitment to DHS was as a loving mother and she referred to the heartache suffered by Ms H for the removal of DHS at his birth. She referred to the reserved and quiet manner in which Ms H conducted herself in the course of the hearing, and the care and cooperation she proffered both to DHS and those caring for him throughout his life. In the course of this hearing, Ms H made similar comments about her loss when DHS was taken from her, and throughout the course of this preliminary application, conducted herself in a similar demeanour as was observed by the Magistrate.

12        The Magistrate stated that she attached great weight to the need for continued and stable care of DHS in the hands of his carers and that it was in his best interests that a permanent care order be made. That order had attached six conditions relating to the transition of care and the regularity of access by Ms H to DHS. At the present time Ms H, in accordance with the terms of the order, sees DHS twelve times per year. There is provision for additional access as may be agreed between the parties.

13        Ms H gave evidence in the preliminary application. I found her an impressive and truthful witness. She stated that on the day the Permanent Care Order was made, she had representation and discussed with her Counsel the prospects of an appeal. She stated that she was given advice that a Notice of Appeal had to be lodged, and filed (as soon as possible) and within one month. She said she was able to complete the form in ten or fifteen minutes, and that she did not need the assistance of other persons. She went to the

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Registry of the Children’s Court where she was handed the appeal form and had the option of either filing it on that day, or taking the form away to be subsequently filed. She elected to take the form away.

14        She said the primary ground relied upon as constituting exceptional circumstances was related to the health of her third son, L. He had a range of serious medical complications from birth, and was regularly an inpatient of The Royal Children’s Hospital (“The Hospital”). For the period within 28 days of 22 March 2010 (“the appeal period”), Ms H stated that although L was in the permanent care of his carers, she was regularly called to The Hospital as he was critically ill with a range of medical problems, including particularly breathing difficulties. She said that when she was about to complete the form, and file it with the Children’s Court, she would regularly receive phone calls from The Hospital which required her to attend and assist in L’s care. At times he was critically ill.

15        In cross-examination, it was put that the period from 2 April 2010 to 8 June 2010, was when L had been admitted to The Hospital, but that Ms H went to see him only on 13 April and 27 April 2010. A further visit was arranged for 11 May 2010 but Ms H was not able to attend as she was unwell. She agreed that this was likely to have occurred. Further, on two occasions in May, and two in July, she was required to sign written consent forms in respect of medical procedures which were undertaken for L.

16        It was put to her that given the attendances at the hospital, L’s medical condition had not prevented her from completing the appeal form. She said that this may have been the case.

17        In evidence, Ms H further stated that over the appeal period, she was, from time to time, called upon to assist her husband in his care of B and D. She saw them regularly each fortnight, but on occasions, as he had a problem with drinking, he was either unable to look after the boys, or needed her

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assistance. She was, however, unable to say whether this occurred during
the appeal period.

18        In evidence, she stated that in addition, around this time, there was a contested hearing in the Family Court concerning custody of B and D. According to the decision of the learned Magistrate however, this occurred in May 2010.

19 Section 109 of the Magistrates’ Court Act 1989 provides for appeals from that Court to the Supreme Court in civil proceedings. Section 109(2) states that any such appeal must be instituted not later than 30 days after the day on which the order was made. Sections 109(4) and 109(5) are in terms almost identical to s.430(1) and 430(2) of the Act. Section 110(4) provides:

“An appeal instituted after the end of the period referred to in sub-s.(2)(a)

is deemed to be an application for leave to appeal under sub-s.(1).”

20        Sub-section (5) provides:

“The Supreme Court may grant leave under sub.s(4) and the appellant

may proceed with the appeal if the Supreme Court –

(a)	is of the opinion that the failure to institute the appeal within the period referred to in sub.s(2)(a) was due to exceptional circumstances; and
(b)	is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.”

21 Thus there are many determined in the Supreme Court as to the meaning of “exceptional circumstances” which are concerned with s.109 of the Magistrates’ Court Act.[1]

[1]             See Schwerin v Equal Opportunity Board & Ors [1994] 2 VR 279; Kenneth Ayres (Aust) Pty Ltd v Goldenberg & Associates (Unreported VSC, 9 June 1994, BC9401114, per McDonald J); Wilson v Myles & McDonald (Unreported VSC, 25 July 1997, BC9703726, per McDonald J); Hughes v Morgan & Anor [1998] VSC 147, per Beach J; State of Victoria (Victoria Police) v McCombe [2000] VSC 109, per Beach J.

22        In Owens v Stevens,[2] Hedigan J said of the phrase “exceptional circumstances”:

[2]             (Unreported VSC, 3 May 1991, BC9100681)

“The use of the phrase ‘exceptional circumstances’ is not unknown in the

legal lexicon. S13 of the Bail Act is a well-known example.

Exceptional is defined, contextually, in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning ‘unusual, special, out of the ordinary course’. This does mean any variation from the norm.

The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.”

23        In Burlock v Wellington Street Investments Pty Ltd,[3] Forrest J made the following comments about the “exceptional circumstances” required to be satisfied pursuant to s.109 of the Magistrates’ Court Act. He said:

[3] [2009] VSC 565 at paragraph 27

• “The granting of an extension of time is not automatic. Upon the expiry of the time for the lodgement of the appeal, a respondent has a vested right to retain the judgment unless the application is granted;

• The onus lies on the applicant to satisfy the test of exceptional circumstances;

• Although ‘exceptional’ is defined as meaning ‘unusual, special, out of the ordinary course’ in the Oxford English Dictionary, in the context of the Act, the circumstances must be such that they can be said to ‘rarely occur’ and ‘perhaps be outside reasonable anticipation or expectation’.

• The inquiry is confined to the circumstances relevant to the applicant’s failure to appeal within time and whether they may be characterised as exceptional;

• As part of that inquiry, a court will examine the conduct of the applicant … in the prosecution of the appeal and the explanation for failing to lodge the notice within time;

• The inquiry in determining whether exceptional circumstances exist as required by s109(5) is not a consideration of all matters germane to the appeal.”

24        His Honour further stated:[4]

[4]             at paragraph 30

“By use of the expression ‘exceptional circumstances’, the legislature intended to place a considerable bar in the way of an applicant before leave will be granted. … .”

25        In Popal & Anor v Accounts Control Management Services Pty Ltd & Anor,[5] Hargrave J referred to, with approval, the principles stated by Forrest J in Burlock.[6] He added:

[5]

[6]

“In addition to the above summary, I would add that no exhaustive test for determining whether exceptional circumstances exist can be stated. Each case must be assessed according to its own facts. The concept of exceptional circumstances cannot be defined in the abstract.”

26        In my view, “exceptional circumstances” must depend upon the facts of the case under consideration. In the present case, I am dealing with a litigant in person who, after the pronouncement of the Permanent Care Order, was unrepresented. Further, this appeal is not concerned with an appeal from a civil order of a Magistrates’ Court, but rather an order of the Children’s Court relating to the custody and care of the appellant’s son. Those factors, in my view, dictate a softening of the approach a court should take as to whether the relevant criteria of “exceptional circumstances” is made out. In my view, the considerable bar which Forrest J referred to in Burlock as being placed in the way of an applicant in an appeal in the Magistrates’ Court is not so significant when one considers the context and legislation involved in this appeal.

27        Nonetheless, I accept that the onus is upon Ms H to prove that the delay in the appeal was caused by ‘exceptional circumstances’.

28        It is unclear from the evidence precisely what aspects of L’s ill health occurred during the appeal period. At that time, Ms H did not have custody of L, but rather he was placed in the hands of his carers. I accept that he was in The Children’s Hospital from 2 April 2010, but I further accept from the evidence, Ms H visited him on only two occasions, on 13 and 27 April 2010. While she was required to sign letters of consent in respect of medical procedures, that did not occur until after the end of the appeal period. The custody and care of all four children was the same before, after and during the appeal period. In that regard, nothing exceptional occurred. While it is perfectly reasonable that Ms H would be concerned about L’s condition when he was admitted to The Hospital, she did not go there to see him, save on two occasions in April of that year. She stated in evidence that there were occasions that she stayed overnight in the hospital, but her evidence is not sufficiently clear for me to accept that these occasions occurred in the appeal period.

29        Of significance is that when the Permanent Care Order was made at the Children’s Court, Ms H had legal advice and was taken to the Registry, provided with an appeal form, and told that it had to be lodged within the prescribed time. She determined not to file it at that time, but rather to take it home.

30        In my view, there was ample opportunity at that time, and subsequently, for the relatively simple form to be completed and lodged within the Children’s Court, even accepting Ms H did not have any legal training or knowledge. Accepting that L was ill for part of the period, I am not convinced, the onus being on Ms H, that in the appeal period there were sufficient “exceptional circumstances” to explain the delay in the document being filed. Ms H was aware of the time limits involved and was aware of what had to be done.

31        In these circumstances, I am not satisfied exceptional circumstances exist. It follows that the application for leave to appeal fails.

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1. [2010] VSC 412 at paragraphs 15-16

2. supra

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