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:

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.

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.

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.”

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] VSC 338
Decision Date: 27 August 2007

CaseChat Overview and Summary

The applicant, PR, sought habeas corpus and judicial review of a decision by the Department of Human Services, which had ordered the Secretary to take custody of her children. The Federal Court of Australia heard the matter. The legal issues before the court involved the validity of the custody order, the availability of alternative remedies, and whether the application for judicial review was arguable and timely.

The court held that the custody order was not a nullity and that PR had alternative remedies available to challenge the decision. Regarding the judicial review application, the court found no arguable error of law in the decision. Additionally, the court concluded that the application was out of time, and therefore dismissed the application. The court's decision emphasised the importance of timely legal action and the need to exhaust all available remedies before seeking judicial review.

The Federal Court of Australia dismissed the application for habeas corpus and judicial review, finding no arguable error of law and that the application was out of time. The court highlighted the need for timely legal action and the availability of alternative remedies. Consequently, the court did not order any specific relief for PR in this case.

Orders