PA v Karavidas
[2001] VSC 185
•30 May 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 5912 of 2001
| P.A. | Plaintiff |
| v. | |
| ANGELA KARAVIDAS (AS DELEGATE OF THE SECRETARY TO THE DEPARTMENT OF HUMAN SERVICES) AND OTHERS | Defendants |
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JUDGE: | BEACH, J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 29 MAY 2001 |
DATE OF JUDGMENT: | 30 MAY 2001 |
CASE MAY BE CITED AS: | P.A. v. KARAVIDAS & ORS. |
MEDIUM NEUTRAL CITATION: | [2001] VSC 185 |
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CATCHWORDS: Procedure – Procedural fairness – Refusal of Children's Court Magistrate to grant application for adjournment – Refusal of adjournment.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. G. Nash QC and Mr. D. Fanning | Dotchin Ehrlich |
| For the First Defendant | Mr. P.G. Priest QC with Mr. H. Draper | |
| For the third Defendant | Ms. S. Bettink |
HIS HONOUR:
This is the return of an originating motion filed in the court whereby the plaintiff seeks the following orders:
1.An order in the nature of certiorari quashing the order of the Children's Court of Victoria constituted by Mr Power M made at the Children's Court at Melbourne on 6 April 2001 fixing the hearing of the Protection Application brought by the firstnamed defendant in respect of the thirdnamed defendant ("the Protection Application") for final hearing by the Children's Court Victoria on 4 June 2001.
2.An order prohibiting the Children's Court of Victoria from proceeding to hear further the Protection Application before final determination of the charges brought against the plaintiff by Senior Constable Marjory O'Sullivan and which are the subject of committal mention at the Magistrates' Court at Melbourne on 30 May 2001 has been finally determined.
3.An order staying the Protection Application with respect to the second defendant listed for final hearing at the Children's Court of Victoria at Melbourne on 4 June 2001.
The plaintiff is the uncle of a 15-year-old girl to whom I shall refer hereafter as the infant.
On 11 August 2000 a delegate of the Secretary to the Department of Human Services took the infant into safe custody pursuant to the provisions of s.69 of the Children and Young Persons Act 1989 ("the Act").
A complaint had been made to the department that the infant had been sexually abused by the plaintiff whilst living in the same house as the plaintiff.
On that same day a protection application was made on behalf of the infant to a bail justice. The grounds for the application were:
"The child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child's parents have not protected, or are unlikely to protect, the child from harm of that type.
The child has suffered, or is likely to suffer significant harm as a result of sexual abuse and the child's parents have not protected, or are unlikely to protect, the child from harm of that type.
The child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child's emotional or intellectual development is, or is likely to be, significantly damaged and the child's parents have not protected, or are unlikely to protect, the child from harm of that type."
The bail justice directed that the infant be placed in a community service and adjourned the further hearing of the application to the Children's Court on 14 August 2000.
Pursuant to various Accommodation Orders made since that time the infant has been living in a community service placement. No final order has yet been made on the protection application.
On 2 March 2001 a number of criminal charges were brought against the plaintiff by Senior Constable Marjory O'Sullivan. They include five charges of committing an indecent act with a child aged between 10 and 16 years to whom he was not married, one charge of sexual penetration and one charge of unlawful assault.
In each case the alleged victim is the infant.
A committal mention in respect of the charges is fixed for 30 May 2001.
On 6 April 2001 an application was made to the Children's Court by the solicitor for the plaintiff that the further hearing of the protection application be adjourned until after the hearing and determination of the criminal proceedings.
At that time the Children's Court was informed by the solicitor for the plaintiff that his enquiries had revealed that the contested committal hearing would probably be held in mid to late July 2001, that the best case scenario for a trial of the charges would be within three months of the committal and that the worst case scenario would be six months.
The Children's Court Magistrate declined to grant a further adjournment of the protection application and fixed it for a nine-day hearing commencing on 4 June 2001.
It is from that order that the plaintiff seeks the relief he does in this court.
It is rare that this court will disturb the decision of a magistrate to grant or refuse an adjournment.
The matter was clearly spelled out by the Court of Appeal of New South Wales in Cucu v. District Court of New South Wales (1994) 73 A.Crim.R.240. At p.246, Kirby, P., as he then was, said:
"It is rare that a court such as this - either in appeal or in judicial review - will disturb the decision to grant or refuse an adjournment. This is because such decisions are essentially discretionary in character. They are made, as necessity requires, quickly and as the justice of the application strikes the decision-maker. The reasons for not disturbing such decisions are too well known to require lengthy elaboration: see, eg Sali v SPC Ltd (1993) 67 ALJR 841 at 848-849; Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 at 250; Adamopoulos (at 77); GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 at 712.
These principles do not, however, mean that this Court forfeits its responsibility to consider a claim that a refusal of an adjournment has miscarried and/or that it has occasioned such a serious risk of miscarriage of justice that the Court must intervene."
However, His Honour then held that the Judge of the District Court who refused the adjournment in that case had erred and held that there should be a re-hearing.
At p.249 Meagher, J.A. said:
"I have read Kirby P's judgment in draft, and reluctantly agree with it. I say 'reluctantly', because in my view a trial judge's decision to grant or refuse an adjournment ought be almost inviolable."
See also McColl v. Lehmann [1987] V.R.503.
The reasons the learned Magistrate gave for his refusal to adjourn the further hearing of the protection application have been transcribed and are set out in his affidavit sworn 16 May 2001 and filed in proceeding No.5784 of 2001. That affidavit is now exhibit "ME4" to the affidavit of Michelle Ehrlich sworn 22 May 2001 and filed in this proceeding.
In his reasons the learned Magistrate considered the decision of the Full Court of South Australia in Atkins v. Minister of Community Welfare and Crowe (1988) 34 A.Crim.R.26 and that of the Full Court of the Family Court in Re K. (1994) FLC 92-461.
For reasons which the Magistrate expressed, he distinguished Atkins case from Re K. and followed the latter decision in preference to the former. I am not persuaded that he made any error in that regard. Having regard to the circumstances in this case, I would have adopted the same course.
In Re K. a husband was charged with the murder of his wife and was awaiting trial at the time of the hearing of applications for custody and guardianship in respect of the three-year-old child of the marriage. The husband applied to the trial judge to defer the making of any final orders in the matter until after his trial. The trial judge declined to do so. The matter then came on appeal to the Full Court of the Family Court. The court held inter alia:
1.The question whether the court should make interim or final orders depended solely upon the circumstances of the individual case. That decision was to be made solely against the criterion of the welfare of the child. Any perceived disadvantage to a party was secondary to considerations of the welfare of the child.
2.The circumstances alone that one of the parties had criminal charges pending and the wider question of potential prejudice in the party's subsequent criminal proceedings would not ordinarily justify an adjournment of the proceedings in relation to a child. In most cases the child's welfare would not be served by his or her custody remaining in abeyance over what might be a substantial period of time pending the outcome of criminal proceedings.
At p.544 the court said:
"The question whether the court should make interim or final orders depends ultimately upon the circumstances of the individual case. However, that decision is to be made solely against the criterion of the welfare of the child. The circumstance alone that one of the parties has criminal charges pending would not justify an adjournment. In most cases the child's welfare would not be served by his or her custody remaining in abeyance over what might be a substantial period of time pending the outcome of proceedings in the criminal courts. Generally a child is benefited by certainty and regularity in his or her life."
Later on that same page:
" So far as the 'right of silence' and any wider question of potential prejudice in the party's subsequent criminal proceedings are concerned, we consider that the position was correctly stated by Young CJ, namely that it would be a rare case where that alone would justify an adjournment."
At p.545 the court continued:
"The circumstances of this case are an obvious example of a situation where it is not only desirable but necessary in the interests of the child to proceed to a final hearing. It was likely that the criminal proceedings would not be finally determined for a substantial period of time."
It is clear that in arriving at the decision he did in the matter the learned Magistrate too was conscious of the delay which would be occasioned if the proceeding before the Children's Court was postponed pending the hearing and determination of the criminal charges brought against the plaintiff.
At para.9 and following of his reasons the Magistrate said this:
"(9)It is also clear from the materials that I have read - the original application report dated 31st August 2000 with disposition report and addendum reports dated 10th March 2001 & 4th April 2001 - that [the infant] is completely estranged from her family. She has had no contact since August 2000 - other than a (fleeting) chance encounter, it appears, at a railway station.
(10)The 'best case' scenario, which I accept from Ms Ehrlich, is that a criminal trial against [the plaintiff] could not be expected to be completed before the end of October. On that basis it seems to me unlikely that a contested hearing would be able to be heard by this Court before the middle of January 2002 at the earliest. That is a period of 16 months after the protection application was issued. That, in my view is far too long for the rights and welfare of [the infant] to be held in abeyance on interim orders.
(11)I could infer, with some certainty, from what I have read in the reports that there is no prospect of any healing in the relationship between [the infant] and extended family members until the case is finally determined (in this court)."
The Magistrate also took into account the effect of s.87(1)(h) of the Act. That sub-section reads:
"87.
(1)In determining what finding or order to make on a protection application or an irreconcilable difference application the Court, as far as practicable -
(h)must ensure that, if there is a conflict between the interests of the child and some other person, the welfare and interests of the child are the paramount considerations."
In para.13 of his reasons the Magistrate said:
"(13)Balancing [the infant's] interests against her uncle's - whilst I acknowledge the validity of the uncle's interest in not having this matter determined before the end of any committal proceeding or trial - in balancing the issues I have to consider [the infant's] interests to be paramount. I do, and in my view, they far overweigh the interests of the uncle. In my view, section 87(1)(h) applies to an application for an adjournment of a protection application just as much as it applies to a final determination of a protection application."
During the course of the hearing before me it was contended by counsel for the plaintiff that the infant is now "happy, safe and secure" where she presently is, and that no prejudice would be caused to her by the adjournment.
The contention was based upon a paragraph in Part 3 of a confidential report prepared by the Department in relation to the infant dated 10 March 2001. The paragraph reads (I have substituted "the infant" for the name of the child wherever appearing and "the plaintiff" for the name of the uncle wherever appearing):
"[The infant] has continued to reside in her undisclosed Adolescent Community Placement and is reported to be well settled and well behaved. The current carer has described [the infant] as a 'delight' and therefore the placement is not an issue if [the infant] continues to stay. '[The infant] gets along well with the carer and the carer's family. At present, there have been no behavioural issues of concern reported to DHS."
However, Part 3 continues:
"Information from the carer indicates that [the infant] has difficulty sleeping at night and is still struggling to stay in her bedroom alone. Recently, [the infant] has had a number of nightmares with regard to her family attempting to force her to return home, which may possibly be stress related to the sexual abuse allegations and physical discipline. [The infant] has attributed her health issues to not getting enough sleep. [The infant] was assessed by her doctor regarding her backache and women's health issues, however [the infant] indicated to DHS that her doctor was not extremely concerned about her health state at this stage and regarded it as being quite normal for her age.
[The infant], on numerous occasions, has been very confused due to the uncertainty of the living situation. [The infant] indicated that her aunt ... had made it clear to her that she and her husband ... were going to reside with the paternal grandparents until the grandparents passed away because it was her responsibility to look after the grandparents. It is therefore the placement with the paternal grandparents is not considered an option for [the infant] given she is fearful of returning home due to concerns regarding possible further sexual abuse by [the plaintiff] and inappropriate physical discipline by other family members. [The infant] has also refused to reside with her adopted parents due to their physical discipline of her."
It must also be remembered that whilst s.25 of the Act gives the Children's Court power to adjourn a proceeding, sub-s.(6) of the section reads:
"(6)The Court must proceed with as much expedition as the requirements of this Act and a proper hearing of the proceeding permit and, in deciding whether and for how long to adjourn a proceeding under this section, the Court must have regard to these requirements."
I have carefully considered the reasons of the learned Magistrate for refusing the application to further adjourn the proceedings and, having done so, am not persuaded that he made any error in the matter and in the manner in which he exercised his discretion.
It follows therefore that the originating motion and summons filed in the proceeding must be dismissed.
The order of the court is that the originating motion and summons are dismissed.
I order that the plaintiff pay the first and third defendants' costs of the proceeding including any reserved costs.
As a notice of discontinuance has been filed in proceeding No.5784 of 2001, there is no need to make any order so far as that proceeding is concerned.
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