PR v DHHS

[2019] VSC 326

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 01691

PR and SV	Appellants
v
DEPARTMENT OF HEALTH AND HUMAN SERVICES	Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May 2019
DATE OF JUDGMENT:	7 May 2019 (revised)
CASE MAY BE CITED AS:	PR v DHHS
MEDIUM NEUTRAL CITATION:	[2019] VSC 326

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CHILDREN — Children’s Court — Interim accommodation order — Appeal — Whether different order should have been made — Contested questions of fact — Exercise of discretion as to witnesses permitted to be called — Children, Youth and Families Act 2005 ss 10, 262, 271.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Self-represented
For the Respondent	Ms J. Davidson	Child Protection Litigation Office, Department of Health and Human Services

HIS HONOUR:

1. This is an appeal by PR and SV,[1] who are the mother and father of a six year old daughter, B, against the interim accommodation order made by the Children’s Court on 18 March 2019. The appeal is brought under s 271 of the Children, Youth and Families Act 2005, which by sub–section (2) gives the Court the power, if it thinks that a different interim accommodation order should have been made, to set aside the order of the Children’s Court and make any other order that it thinks ought to have been made.

   [1]The appellants’ names, and the name of their child, have been anonymised pursuant to order of the Court.

1. An initial interim accommodation order was made on 28 June 2018. The final or contested hearing of this matter was to occur on 18 March 2019 but because of the length of the case, or the unavailability of a court or a Magistrate, it did not proceed. Instead a directions hearing occurred, but the interim accommodation order was extended until further order. The child, B, continuing to be placed with her maternal grandmother.

1. There were 19 conditions attached to that order, including orders 6 and 7, that the mother and father must submit to random supervised alcohol and drug testing 3 times per week on Monday, Wednesday and Friday or otherwise as directed and they must allow the results to be given to the Department.

1. I have heard evidence, including evidence from a Departmental child protection worker, that the mother and father have a very loving relationship with their daughter Understandably, they want her reunited and living with them.

1. The grounds of the appeal as summarised in the notice of appeal and supplemented by three detailed affidavits by the mother, which I have read and taken into account, included the following:

On 18 March 2019, following a long wait, we attended Melbourne Children’s Court for what we believed to be day 1 of a 9 day contested hearing. Since the Conciliation Conference in October 2018 our witness list and the hearing was scheduled. We had two directions hearings with Magistrate… only weeks prior. At the last of the directions, [DHHS] asked us to remove some of our witnesses, however, he denied their attempt after considering we have contested every single allegation made by [DHHS] from the beginning. On this morning, without a single piece of evidence, or a single consideration, [another] Magistrate was going to grant the FRO for [DHHS] on their ‘evidence’ and [I] began to ask questions [about] if she [had] even looked at the evidence ([the Magistrate] said no, she would not look at our evidence). Upon hearing me say we would appeal, [the Magistrate] said that she will allow a contested hearing of a maximum of two days and told [DHHS] to cut off every single witness that only had ‘positive things to say about us’.

There was no consideration of evidence, of [the child’s] best interest, standards of a reasonable parent, probability and proportionality, dismissing [the previous Magistrate’s] order… amounts to nothing less than total failure of consideration.

From day one, 22 June 2018, this case was built on lies, mistakes and bigger mistakes to cover up those previous mistakes. [DHHS] has failed to protect our daughter from harm, intentionally caused emotional trauma, breached [its] duty of care, acted outside the scope of their duties and continuously disregarded the best interest principles of s 10 of the Act. The interim accommodation order [was obtained] by [DHHS] when we were not present and was against our consent.[2]

[2]This text has been amended in minor respects particularly where indicated by words being placed in brackets.

1. As I have said, the mother’s three affidavits, detail the facts that she relies on to support the  appeal.

1. For the Department, a child protection practitioner, who has been dealing with this matter since late last year made an affidavit. His affidavit repeats the Department’s allegations that because of the parents’ behaviour all contact must be supervised by the Department and that the Department and police have felt it necessary to apply for an intervention order to afford the child additional protection. The affidavit states that there is recent information to indicate that the father’s drug use is increasing and his mental health is deteriorating, and that there is no information to indicate that the mother has addressed her substance misuse concerns. The parents are subject to a court order requiring them to complete drug screens three times per week, and are regularly provided with urine screen slips for this purpose, but despite this, the father has completed no screens and the mother has not completed any screens since 11 November 2018.

1. The father told me that he has not taken the drug screening tests because of the history of the matter, including that the Department has not worked with him and the mother to provide them with help.

1. The mother told me that the Department’s account contains a number of errors and that that she has not returned positive drug tests as the Department alleges.

1. The evidence presented to the Court reveals that there are contested matters of fact about important issues, including drug usage. They need to be decided at a final hearing, where the best interests of the child will be the paramount consideration.[3] In the case of appeals against interim accommodation orders, the Court cannot always make final findings of facts about events of alleged past harm. Rather, while assessing the evidence concerning the conduct in question, the Court must particularly consider the nature and extent of the risk of harm to the child associated with the conduct, were it to occur or reoccur, and to consider whether that risk is unacceptable, having regard to the best interests of the child. In this case, the final hearing of the matter is scheduled to occur in about 16 days on 23 May. The child has been with her maternal grandmother since last year. I accept that the parents have a loving relationship with the child. But I also accept that there are contested questions of fact, particularly about issues of drug use. And in all those circumstances, I am not persuaded that a different interim accommodation order should have been made. I do not propose to set it aside.

   [3]See s 10 of the Children, Youth and Families Act 2005.

1. I therefore dismiss the appeal.

1. I add the following. I do consider that all parties should be able to request the Children’s Court to further exercise its discretion as to the witnesses that the parties may call at the hearing scheduled for 23 May. On 18 March 2019, the Court shortened  the list of witnesses that the parents wished to call. On that day, the parents were self-represented and attended Court without any notice that they would have to justify the calling of witnesses previously nominated. They attended Court believing that the appeal would be heard that day and that they would be able to call the witnesses that they had nominated. In those circumstances, I consider that the parents, and also the Department, should be permitted to request a further exercise of the Children’s Court’s discretion as to the calling of witnesses. It is of course for the Children’s Court to decide after hearing the parties if the evidence of particular witnesses evidence may be relevant.