PR v Department of Human Services

[2007] VSC 338

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7572 of 2007

PR	Plaintiffs
v
THE DEPARTMENT of HUMAN SERVICES	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2007
DATE OF JUDGMENT:	27 August 2007
CASE MAY BE CITED AS:	PR v The Department of Human Services
MEDIUM NEUTRAL CITATION:	[2007] VSC 338

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APPLICATION for habeas corpus – Children, Youth and Families Act 2005 – Custody to Secretary order – order not a nullity – alternative remedy available – application for judicial review – no arguable error of law – application out of time – application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr A in person
For the Defendant	Ms K Judd	Court Advocacy Unit, Department of Human Services

HIS HONOUR:

1. PR is a six year old boy, (whom I shall refer to as “the child”), who is the subject of a Custody to Secretary order, made pursuant to ss.275 (1)(e) and 287 of the Children, Youth and Families Act 2005.  That order was made by Collins M in June 2007.

1. The order was, itself, an extension of a previous order made in December 2005, by Her Honour Judge Coate.  That order had in turn, been preceded by an order of His Honour Judge Wodak, made in April 2005.  This in turn was preceded by a series of prior custody orders made in the Children’s Court, going back, to 2002.  The current proceeding is brought, on behalf of the child, by his father Mr A.  It is brought in the child’s name, because the primary relief sought is a writ of habeas corpus, see Rule 57.02(3).  In the alternative, Mr A seeks relief in the nature of mandamus, prohibition and certiorari, with respect to the order of Collins M. 

1. I accept that Mr A is genuinely concerned and aggrieved in respect of the history of orders made for the protection of his son.  In his view, the child has been “sentenced to the loss of a father.”  Mr A regards the current order as poisoned by factual errors made on the part of officers of the Department of Human Services (DHS) in the course of the handling, over the years, of his son’s case.  In Mr A’s submission, “the whole case rests on yesteryear’s fabricated concerns.” 

1. The earlier procedural history comprising the background to the matter is usefully summarised by Judge Wodak, and I adopt Paragraphs 1 to 8 of his Honour’s judgment:

1.In March 2001, PR was born. His father is A, the Appellant. His mother is B. PR’s maternal grandparents are PB and SB.

2.At the time of PR’s birth, his parents were in a relationship. Within a few months of PR’s birth, that relationship deteriorated. In November 2001, a Protection Application was commenced by the Department of Human Services in the Children’s Court. It was adjourned to December 2001, and in November 2001, PR was placed on an interim accommodation order and released into Mr A’s care.

3.In December 2001, neither Mr A nor Ms B appeared in the Children’s Court. The further hearing was adjourned to December 2001, when it was once more adjourned to March 2002.

4.In January 2002, Mr A and Ms B were arrested and charged with armed robbery. In January 2002, the Children’s Court made a new interim accommodation order, and placed PR in the care of PB and SB. The Department then sought a finding by the Children’s Court that PR was in need of protection. In July 2002, after a contested hearing, Mr McPherson, Magistrate made findings that the grounds under s63(c) and (e) were made out. His Worship made a protection order, and a Custody to Secretary order for 12 months.

5.In August 2003, the Court extended the Custody to Secretary order for a further 12 months from 31 July 2003. Neither Mr A nor Ms B was present at that hearing. Each was in custody. Thus the extension was unopposed.

6.In July 2004, the applicant, a Senior Protective Worker, applied for a further 12 months extension of the Custody to Secretary order. Both Mr A and Ms B filed applications to revoke the Custody to Secretary order.

7.All applications were heard by Mr Levine, Magistrate, on 3 days in December 2004. Ms B was not present when the hearing commenced, although she did attend later on the first day, unrepresented. Mr A represented himself. Neither of the maternal grandparents was present during the hearing. During the hearing, Mr A withdrew his application to revoke the order.

8.Mr Levine ordered the extension of the Custody to Secretary order for 12 months from 31 July 2004. (footnotes omitted, slight alterations to text for anonymisation purposes)     

1. Particular objection is now taken by Mr A to (a) the DHS summary of complaints which precipitated the first protection application in November 2001, and (b) the alleged failure by DHS to acknowledge a period of satisfactory parenting by the child’s mother of approximately eight months in 2004.  I shall come back to these particular allegations and say something more about them.  But there are, I think, three fundamental problems with the application for habeas corpus.

1. Firstly, no sensible basis has been advanced for the proposition that the order of Collins M is a nullity.  Secondly, habeas corpus does not provide a remedy by way of judicial review.  It does not facilitate collateral attack upon the basis of the judicial exercise of discretion which is in issue.  And thirdly, alternative remedies have both existed and continue to exist within a statutory framework deliberately intended to ensure that Mr A has an appropriate range of remedies by which to challenge the Magistrate’s order and ventilate any complaint he may have with respect to its ongoing justice.

1. Insofar as the alternative claim for relief in the nature of certiorari and other prerogative writs is concerned, Mr A also faces fundamental problems. First, the application for relief pursuant to Order 56 is out of time.  Secondly, the matters complained of have merged into other facts, and could on no view be regarded as invalidating the reasoning of either Judges Wodak or Coate.  Thirdly, no arguable vitiating error in the decision of Collins M has been demonstrated. Fourthly, alternative remedies are clearly available to him.

1. I shall elaborate my reasons for the conclusions which I have just summarised, turning first to the question of habeas corpus.  The nature of a writ of habeas corpus is stated in Halsbury’s Laws of England in the fourth edition in summary form:[1]

584.   Nature of writ of habeas corpus. The writ of habeas corpus[2] ad subjiciendum is the ancient and most celebrated and most efficacious procedural instrument of the common law to test the legality of the detention in custody of one person by another. It provides an immediate, expeditious and effective machinery for vindicating and securing the liberty of the subject by a court order releasing him from any manner of unlawful or unjustifiable detention or restraint. It is the constitutional guarantee of the fundamental human right of the freedom of the person, since it is a prerogative writ of right and is granted ex debito justitiae, although not as a matter of course.[3] (save as set out below footnotes omitted)

[1]Halsbury’s Laws of England, Fourth Edition, Volume 37, para 584

[2]The writ of habeas corpus (literally “you have the body”) takes its name from the command in the writ directed to a person who is detaining another in his custody to have “the body” of that person produced before the court at the date and time specified for the purpose specified in the writ …

[3]See Ex parte Corke [1954] 2 All ER 440, [1954] 1 WLR 899, DC. Thus the writ may be refused where another remedy lies for effectively testing the validity of the restraint.

1. It is accepted by DHS that this is a case in which habeas corpus might facilitate a challenge to an invalid custody order if the evidence demonstrated such a remedy was appropriate.  In other words, it is not contended that habeas corpus could never lie to challenge a Custody to Secretary order. “Custody or control” is sufficient for the purpose of the writ.[4]

   [4]Cf. Barnado v Ford [1892] AC 326 at 333.

1. Nevertheless in the present case, the order of Collins M is valid on its face and no basis for concluding that it embodies an excess of jurisdiction has been satisfactorily advanced. 

1. Mr A’s case is first that the chain of proceedings concerning the child which has taken place over the years, in effect miscarried at an early time and that the actions of DHS have over the course of time led to continuing false conclusions of fact reached in the context of earlier proceedings.  It is contended that these earlier errors must be regarded as invalidating the last order made by Collins M.

1. These arguments are not arguments of a kind which in my view can be ventilated by way of an application for a writ for habeas corpus.  Such arguments could only give rise to a legal remedy if they demonstrated a vitiating error in decision making.  Such an error of alleged fact finding or discretion cannot be impugned by a writ of habeas corpus.  In order for such a writ to be granted, it must be shown that there is no warrant for the detention complained of or that the warrant is a nullity.  In the case of Re Officer In Charge of Cells, ACT Supreme Court Ex parte Eastman,[5] Deane J stated:

The writ of habeas corpus is an important safe guard of liberty in circumstances where a person is being detained in custody without lawful warrant or authority.  It is not however available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity. 

[5](1994) 123 ALR 478 at 480.

1. See also the observations of the New South Wales Court of Appeal in the case of Eaves v James. [6]

   [6](1988) 33 A Crim R 369.

1. As in the case of Eastman, the present is a case in which it is appropriate to conclude “There is nothing at all in the material before me which provides an arguable basis for a finding that the order made by any of the learned magistrates was vitiated by absence or excess of jurisdiction or is otherwise void.”[7]

   [7]At 480.

1. Even if I am wrong in the above conclusions however, habeas corpus should not go where there is another preferable remedy available. Parliament has provided for rights of appeal to the County Court by way of rehearing and to this Court on questions of law, in respect of decisions such as that of Collins M.  Parliament has also given Mr A a continuing right to apply for revocation of the order in issue.[8]  In my view given that Mr A’s fundamental complaint is one concerning the facts of the matter the appropriate venue for such complaint is not this Court. Further, habeas corpus should not go when the ultimate question in issue is the best interests of the child, and there exists a statutory right to re-agitate this question before a specialist jurisdiction charged by Parliament with judging this very issue.  I turn then to the applications for judicial review.

   [8]ss 308, 328 and 329.

1. The current application is not in proper form for a proceeding pursuant to r 56.  It does not properly address the position of the infant plaintiff and it does not state grounds in accordance with r 56.01(4).  Further it was not brought until 21 August 2007, i.e. more than 60 days after the decision in issue and contrary to r 56.02(1).   

1. Mr A submits that this is a case of special circumstances in terms of r 56.02(3), because first he has been under a regime of “intensive parole” during the relevant period; secondly he has had to prepare the relevant paperwork entirely on his own; and thirdly he has been caught up with other proceedings before another Supreme Court Justice concerned with questions relating to his parole.

1. Given the relatively short excess beyond the 60 day time period specified in the rules and the lack of apparent prejudice to DHS as a result, I would be prepared to at least entertain these excuses, if I were persuaded that Mr A had a clearly arguable case which should not be shut out for other reasons going to the court’s discretion apart from that of the time limit. 

1. I turn then to what I take to be Mr A’s underlying complaint in respect of the decision in issue and in particular whether any arguable error of law has been demonstrated with respect to this decision.

1. Mr A focuses firstly upon complaints made in November 2001 by an officer or officers of DHS concerning parenting of the child.  Mr A contends these complaints were untrue.  Those complaints are summarised in Paragraphs 4-9 of the affidavit of AC affirmed 14 August 2007.  They ultimately refer to:

The continuing concerns in relation to the history of non compliance of the parents, refusal to accept services, the questionable mental health status of the mother, her history of drug abuse, medical neglect by the mother and environmental neglect of the child, together with the maternal grandmother no longer being available to provide respite.

1. Mr A takes direct issue with the truth of these elements of alleged history.  It seems to me that whether or not Mr A is correct, the truthfulness of these original complaints is no longer necessarily material to the order of Collins M with which I am concerned.  This is because the facts of the matter have been subsequently assessed on a whole series of occasions by the Children’s Court and on appeal, the County Court.  Indeed directly following the complaints in issue Mr A was allowed to retain custody of the child, firstly by a bail justice in November and secondly by a magistrate on and after mid November 2001. It is apparent that the allegations complained of were critically assessed and were not regarded as conclusive of the question of custody.  

1. In other words it is apparent that the situation as it appeared to those decision-makers, despite the prior concerns of DHS officers did not justify the placing of the child in care.  The child was not given over to his maternal grandparents until late January 2002 and that only occurred when Mr A himself had been taken in to custody on a series of charges for offences of violence and dishonesty. 

1. Since January 2002 the merits of the child’s custody have been before the courts on a number of occasions, and it is apparent from the decisions of Judge Wodak and Judge Coate that in latter years the courts’ orders have not turned upon the validity, or otherwise, of the initial complaints with which Mr A takes issue.[9]  

   [9]Following Judge Wodak’s decision the DHS case plan was also the subject of internal review and appeal. In turn the departmental decision was the subject of an application for review before VCAT which it appears was withdrawn by Mr A in the course of the hearing on 19 July 2005.

1. This is most dramatically illustrated by the decision of Judge Wodak who, it is apparent, critically assessed the DHS evidence before him.  He noted inter alia that when the matter came before him it was conceded by the DHS witness that at the time of the hearing before Levine M, which resulted in the decision appealed to Judge Wodak, it was wrongly asserted that Mr A was facing criminal charges.

1. Judge Wodak also reached a series of conclusions such as the following, at Paragraph 35:

Ms R made allegations about Mr A’s drug use.  There was no evidence of drug use by Mr A at times relevant to this application, that is in the period from late July 2003 to date.  Mr A maintains that he has not used drugs in this time.  I am unable to find that Mr A has engaged in drug use or abuse in this time, on the evidence before me.

1. It is apparent from this and other passages that His Honour was very careful to critically assess the evidence put before him on behalf of DHS, and to disregard allegations that were made about the child’s parents in respect of the periods other than that with which he was critically concerned.

1. It is impossible, reading His Honour’s decision, to reach the conclusion that the complaints made in November 2001 to which Mr A particularly objects, carried any weight with His Honour whatsoever.  The same conclusion flows from a careful reading of the decision of Her Honour Judge Coate.

1. The second matter of history, which is the subject of particular submission by Mr A is the proposition that a DHS report of 2004, which Mr A obtained in 2006 upon a freedom of information application, discloses statements by the child’s maternal grandmother of evidentiary significance. It is submitted such statements in particular support the view that the child’s mother had acted as a competent mother towards the child for part of that year.

1. The relevant document states:

Since Ms B’s release from jail she has been submitting regular drug urine screens and has enrolled at the local TAFE to do her VCE.  She has been bright and cooperative since her release.  Her mother states that she is excellent at home and gets on well with all the family.  She also states that she feels B is an excellent mother, and she hopes that she can maintain her progress when A is released.

1. This, and other documentation was obtained by Mr A after the decision of Judge Wodak.  The statement that Ms B’s mother “feels B is an excellent mother”, is at best hearsay as to the fact of the matter, and is in truth no more than an expression of feeling the basis of which is unclear.

1. Moreover, even if it were regarded as having the evidentiary effect for which Mr A contends, namely a statement demonstrating that the child’s mother was a competent parent for a period in 2004, it is no more than a factor that could have been placed before Judge Coate, or before  Collins M, and could indeed now be raised on a revocation hearing if Mr A were to pursue revocation.

1. In my view, it does not demonstrate that the decision of Judge Coate, or the decision of Collins M extending the order made by Judge Coate, is arguably vitiated by an error of law.  Indeed, the decision of Judge Coate makes clear that she carefully considered the evidence before her, made a series of specific findings as to the child’s situation, and gave full and proper reasons for the exercise of her discretion.

1. In particular Judge Coate found that:

26.In my view, the evidence before me relevant to those considerations is:

(a)PR has been living in the care of his maternal grandparents for most his life. He appears well and happy.

(b)PR is well settled in his grandparents’ care and appears well adjusted. He is not displaying any concerning behaviour either at home, or at kindergarten.

(c)In so far as he can, PR is expressing a wish to stay in his grandparents’ care.

(d)PR’s primary attachment appears to be his grandmother. This attachment will shortly be the subject of an expert assessment by “Family Transitions”.

(e)PR maintains monthly visits to his father in prison and regular telephone contact with him.

(f)PR’s mother has visited him 3 times in the last 10 months.

(g)PR’s mother, as at Thursday last, has indicated to the protective worker that she needs another 6 months before she would be ready to have the full-time care of PR.

(h)Mr. A is currently in custody completing a sentence and not due for release until at least April, 2006.

(i)Upon Mr. A’s release, he would have some considerable work to do to satisy the range of necessary criteria to be eligible for consideration as an appropriate full time carer for PR, even if he successfully challenged the DHS current case-plan for permanent care. Mr. A must not only provide the usual requirements of minimum standards of parental care such as a stable home and income and some insight into the needs of a five year old boy, but given Mr. A’s long-standing criminal history, his likelihood of re-offending and further incarceration remains high. The risk of detriment to PR’s well-being is high if he were moved into his father’s care and then his father were to be further incarcerated.

1. She further concluded:

27.In applying the matters for consideration in this application to the evidence I find:

(a)That PR is a child of 4 ½ years who has no effective custodian available to him through either his mother or father because of their various circumstances.

(b)He is being well cared for by his extended family in a placement which is stable.

(c)Without an order in place, there would be no lawful impediment to PR’s mother removing him from his current placement, or indeed Mr. A demanding that PR be handed over to any person he directs is an appropriate carer for his son.

(d)Without an order in place Mr. A may well direct that PR be placed with his mother, even though she is expressing no capacity to care for PR at present. Indeed it was Mr A’s submission that PR’s mother was perfectly capable of looking after him now, despite her having made only three contacts with PR in the last 10 months and not participating in these proceedings. Mr A stated that there were no protective concerns with respect to the mother other than fabricated ones. He continued with this assertion despite court findings to the contrary.

(e)I am satisfied on the evidence that PR, for his safety and well-being, must be maintained on an order which directs him into his current placement where he is being appropriately cared for and from which he cannot be removed at will.

(f)PR is having appropriate contact with his father.

(g)Sadly, PR’s mother has not made herself available to PR to enable him to have on-going contact with her.

(h)Given the above, there is no prospect of PR being reunified with either parent for the duration of the Order.

PR’s best interests are served by extending the current Custody to Secretary Order to provide a stable, family environment for him in which he is currently developing well.

For the above reasons I order that the current Custody to Secretary Order is extended from 30^th July, 2005 to 29^th July, 2006.

1. These conclusions were clearly open to Judge Coate in December 2005 on the evidence before her. Whatever the child’s mother may or may not have done in 2004, her apparent lack of interest in the child in the preceding 10 months was properly regarded as a critical factor. 

1. It is apparent that subsequent to Judge Coate’s order Mr A was released from imprisonment, it would appear, on parole, and that in this regard, the situation had materially changed at the time the order was extended by Collins M (although there was no evidence as to the current situation of the child’s mother). 

1. On the evidence before me, it appears that the order for extension made by Collins M was made by consent and without written reasons.  But if it was not made by consent, as Mr A maintained before me this morning, he is still faced with the problem that there is nothing before the Court to indicate any error in the learned magistrate’s decision.

1. In these circumstances, it seems to me that the attack on the decision must fail.  Once again, however, if I am wrong in coming to this conclusion, I would decline to exercise my discretion, pursuant to r 56, either to extend time or to dispense with defects in the form of the application, when it is apparent that Mr A has open to him, a series of alternative remedies, and more particularly, a continuing right to seek revocation of the order in issue, pursuant to the Act.  This right is, in turn, buttressed by statutory rights of appeal.  Accordingly, it seems to me that both the application for a writ of habeas corpus, and the application to institute proceedings by way of judicial review, should be dismissed. 

1. Insofar as Mr A’s application is to be understood to raise questions of other remedies, by noting on its front:

5.Common law

6.and in the matter of an application for Contempt of these Proceedings

7.False Imprisonment

then in my view, the application is so totally incompetent in form, it should also be dismissed.

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