Purcell v RM
[2004] VSC 14
•9 January 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
IN THE MATTER OF an appeal pursuant to s80B of the Children and Young Persons Act 1989
No. 4134 of 2004
| MYRENE PURCELL (as Delegate of the Secretary to the Department of Human Services) | Appellant |
| v | |
| R.M. & ORS | Respondents |
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JUDGE: | GILLARD J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 January 2004 | |
DATE OF RULING: | 9 January 2004 | |
CASE MAY BE CITED AS: | Purcell v R.M. & Ors | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 14 | |
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APPEAL – Section 80B of Children and Young Persons Act 1989 – Parties to appeal – Nature of appeal – Test for interim accommodation order – Children to remain with mother – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms L. Bazzani | Department of Human Services, Court Advocacy Unit |
| For the Mother | Dr I. Freckelton | Victoria Legal Aid |
| For Child A | Ms S. Buchanan | Victoria Legal Aid |
| For the Paternal Grandmother of Child A | Mr G. Martin | |
| The Father of Child A | Appeared on his own behalf |
HIS HONOUR:
This is an appeal under s.80B of the Children & Young Persons Act 1989. The appellant is Myrene Purcell as delegate of the Secretary of the Department of Human Services. By s.64(2) of the Act the Secretary is one of the persons defined as “protective intervener”. Under s.80B the protective intervener is given the right to appeal to the Supreme Court against an interim accommodation order. Under s.7 the Secretary is empowered to “delegate to any employee or class of employee” functions under the Act.
In her affidavit Myrene Purcell, a child protection worker, states that the Secretary has delegated to her the role of protective intervener. In an affidavit sworn by Laurie Harking he states that he is the Regional Director for the Southern Metropolitan Region and has been delegated by the Secretary the power to bring an appeal and has approved the institution of this appeal.
According to the Notice of Appeal, Myrene Purcell is named as the appellant and the respondents are noted as “Jacinta Mary Heffey & Ors (as per attached schedule)”. There is no attached schedule to the notice of appeal. Unless there is some statutory provision, and I am not aware of one, the learned Magistrate should not have been joined as a party to this appeal. This is not a judicial review, it is an appeal pursuant to a statutory right against an order made by the learned Magistrate. She should not have been a party to the proceeding. I give leave to the appellant to amend the Notice of Appeal to name the correct respondents.
Ms Bazzani of Counsel, who appears for the appellant, has informed me that the respondents should be the mother, who is represented on this appeal by Dr Freckelton, the paternal grandmother of one of the children, namely, A who is represented on the appeal by Mr Martin of Counsel and the father of child A, who attended and made representations to the court. Ms S. Buchanan of counsel appeared for the child A, and Ms Diane Preston from the Victorian Government Solicitor attended the court and informed the court that the police would give any assistance the court required. The police were involved in a number of the incidents which involved the mother.
The appeal is against two interim accommodation orders made by Ms J Heffey, a Magistrate, in the Children’s Court yesterday in respect of two girls, A and B. The orders are in these terms:
“I order that the child A (and B), be placed on an interim accommodation order. Until the date of the next Court hearing I order that the child is to be released into the care of RM, … who is the child’s parent, pending that hearing or resumption on the entering (whether orally or in writing) by that parent into an undertaking to produce the child to the court for the hearing or the resumption of the hearing of the proceeding.”
The learned magistrate imposed nine conditions in the order concerning child A and seven conditions in respect to child B. It is necessary for me to read out the conditions. With respect to child B she has imposed the following 7 conditions -:
“1.Mother must accept visits from and co-operate with DOHS.
2.Mother must accept support services as agreed with DOHS.
3.Mother must go to family violence counselling as agreed with DOHS and must allow reports about attendance to be given to DOHS.
4.Mother must go to a psychiatrist as agreed with DOHS for assessment and treatment including review of mother’s prescription drug regime and must allow reports to be given to DOHS.
5.Mother must not expose the child to physical or verbal violence.
6.Mother must not unreasonably withhold agreement to the choice of psychiatrist.
7.Access to the paternal grandmother is as per current Family Court order.”
Similar orders were made in relation to the child A with further orders relating to the paternal grandmother’s obligations.
At the outset of the appeal I raised the question as to the nature of the appeal. Dr Freckelton, who appeared on behalf of the mother, submitted that it was not an appeal de novo but an appeal on the material before the magistrate. He submitted it was an appeal in the strict sense and it was necessary for the appellant to establish that the learned magistrate’s decision was wrong. He referred to s.80B and in particular sub-section 2. I asked whether any Judge of this court had discussed the nature of the appeal. My question did not receive any response. After a short adjournment Dr Freckelton produced two cases which discussed the question and which the Court found helpful.
The cases are the unreported decision of Beach J in Hien Tu v Secretary of the Department of Human Services delivered 23 February 1999, and the unreported decision of Ashley J in The Secretary and Department of Human Services v Laura Ross and David Ross delivered 27 May 2003. The latter judgment I may say is particularly helpful. All I can say is that I am surprised that Counsel for the Department was unaware of either case. It is important to determine the nature of the appeal.
Before going to the nature of the appeal it is necessary to say something about the application in the Children’s Court. RM, who was born on 25 October 1970, is the mother of a son and two daughters. The present application concerns the two daughters, child A born 30 August 1995, now eight years, and child B, born 7 April 1997, now aged six years. They reside with the mother and her female partner, LP, in a bayside suburb.
A number of incidents occurred on 3, 4 and 5 January 2004. One involved alleged shop lifting by the partner LP on 3 January 2004. It is said that child B was present when this alleged offence occurred. The police attended the home in Mt Martha following on from that incident and a nasty physical confrontation took place. It appears that when the police attended the home on 3 January 2004 to discuss the alleged shop lifting incident, and that incident involved articles being thrown at the manager at Safeway, in the presence of the child B, LP became violent and punched and kneed a police officer. During the incident it became necessary for the police to use capsicum spray. It appears that when the police were attempting to deal with LP, the mother was in the kitchen and it is alleged that she took a knife in her hand and threatened the police while holding the child B in her arms. I interpolate to observe that these alleged incidents are contested by both the mother and her partner.
Eventually matters settled down. However, it appears that later on 4 January and also on 5 January other incidents occurred in which a screaming match took place involving the mother, her partner and neighbours. It is said that a number of threats were made by the mother, including threats to use firearms. Not surprisingly, these incidents caused the Department of Human Services officers some concern. I may say I have not summarised the incidents in any detail, but they are matters of concern because they occurred in the presence of one or both of the children.
On 7 January 2004 a decision was made to institute apprehension proceedings in respect of the children and to take them into custody. Ms Purcell obtained a warrant from the Children’s Court at 3.00 p.m. on 7 January 2004 and the children were taken into custody with the assistance of the local police at 4.00 p.m. On that day the Children’s Court issued an application for a protection order at the request of Ms Purcell. The grounds of the application are s.63(c)and (e). That application was listed for 8 January 2004.
That evening an application was made to a Bail Justice for an interim accommodation order pursuant to s.73(4) of the Act that the children remain in the custody of the Department. The Bail Justice refused the application and ordered that the children be returned to the mother overnight. Yesterday the application came on for hearing before the Children’s Court. It was treated as an application for an interim accommodation order pending the hearing of the protective order application. The protective application has been adjourned to 28 January 2004.
Ms Bazzani, of counsel, has informed me that the most likely procedure that will be followed hereafter is that the parties will return on 28 January 2004 before the Children’s Court and it is clear that on that occasion the Children’s Court will have to reconsider the question of an interim accommodation order. The order continues until that hearing - see s.75(1). Directions, no doubt, will be given with respect to the application and she informed me that it is most likely that the protection application will not be heard for a period of three months.
The application yesterday, and this appeal, are concerned with what is to occur between now and the eventual hearing. It is important to note, as I have already observed, that on 28 January 2004 all parties will be present at the Children’s Court and to that extent the Court is actively seized with the issue of what is to occur pending the hearing. The important point is that the Court will have the opportunity to reconsider the interim order. The court may make an interim accommodation order under s.73 of the Act if a protection application is filed, see s.73(1)(b). Under s.74 the court may impose conditions, see s.74(5).
In deciding what to do on an application for an interim accommodation order, the well being of the child and any risk to the physical or mental well being of the child are matters of substance which must be carefully considered and determined. It is the immediacy and the gravity of any risk of harm which is important on such an application. Is there an acceptable risk if the children are left with the mother? Is there the likelihood of some harm? They are questions which are very important to consider and determine in the present proceeding. Ms Bazzani points out, it is not only the risk of harm but the likelihood of some harm which must also be taken into account.
The appellant seeks an order that an interim accommodation order be made placing the children with suitable persons or a community service and reference is made to s.74(1)(c) and (d).
It appears that on an application for an interim accommodation order a procedure has been adopted by the Children’s Court whereby the application is determined on assertions and submissions made by the parties present at the hearing. The general rule is that sworn evidence is not placed before the court. It is said that this approach is authorised by s.82(1)(d) of the Act. I have been assured by Ms Bazzani that this has been the procedure in place for many, many years. I note in the judgment of Ashley J that he refers to what is described as an unusual procedure, but sitting in this Court I do not for one minute criticise it as being an inappropriate procedure. No submission was put to me that it was inappropriate or contrary to the law. I say no more about it. However, what actually occurred before the Magistrate yesterday is summarised in five paragraphs of the affidavit of Myrene Purcell. I may say that it tells this court very little of what in fact occurred, bearing in mind that I have been told the hearing took nearly two hours.
Ashley J in the Secretary Department of Human Services v. Laura Ross and David Ross discussed the procedure and he observed at paragraph 11:-
“It could not be thought, in my opinion, that it was desirable for the learned Magistrate to determine the application simply in reliance upon unrecorded submissions from the Bar Table. That is so despite s.82(1) of the Act. Nonetheless it must be recognised that in urgent circumstances a course may be followed which is far from ideal. Having said that, the problem when an appeal is brought from an order made in such circumstances, become very considerable.”
These observations highlight the fact that very little material is placed before this Court as to what did take place before the learned Magistrate. Having made those observations His Honour then went on to discuss the nature of the appeal. I quote from paragraph 14 where His Honour says:-
“14. Section 80B of the Act does not itself describe the nature of the appeal which it authorises. It does say by sub-section (2) that on an appeal the court must, if it thinks that a different order should have been made below, set aside that order and make an order in lieu or otherwise dismiss the appeal. That is the broad power. It seems at face value to be a power akin to that enjoyed by the Court of Appeal on appeal from a single judge of this Court.”
He went on to say in paragraphs 15, 16, 17 and 18 the following:-
“15. There are other provisions in the Act which authorise appeals, ss.116 and 117. The former, which does not apply to appeals under S.80(B) seems to be equivalent to the general right of appeal to the County Court from decisions of the Magistrates’ Court. The latter which again does not apply to orders made under S.80(B) - for it only applies to final orders - mirrors ss.92 and 109 of the Magistrates’ Court Act and is restricted to an appeal on the question of law.
16. It appears to me considering those sections as well as S.80(B) that what the latter contemplates is an appeal which should ordinarily be conducted upon material produced before the Children’s Court but with an opportunity of adducing addition material in particular, if not necessarily, special circumstances. Concerning what was then s.79 of the Act Eames J. said this in Morrow v. Secretary (former Director-General and anor) unreported 28 October 1994 -
‘In my view the breadth of power given to the Supreme Court under s.79 and the nature of the proceedings, being concerned with protection of the children, are such that if the Court in an appropriate case thought that, although there was no apparent error of law in the conduct of the hearing before the Magistrate, the order which was made was inappropriate, then it might interfere and substitute such order as it saw fit, and may do so either on the material provided to the Magistrate, or on such information as was provided to the Court by way of affidavit. Furthermore it does not seem to me that the Court would be precluded from hearing oral evidence if it thought appropriate. But it would in my view be exceptional for the court to do so.’
17. As I see it, His Honour took a view to the ambit of what is now S.80(B) which is compatible with my perception of its intended operation. Probably His Honour’s approach would lead to receipt of material not before the Children’s Court more readily than I would contemplate, but having regard to the importance of the welfare of the child in a case such as this, some lenience may be though reasonable.
18. All in all it seems to me that if an appeal is brought on swiftly from the Children’s Court and if the material placed before that Court is capable of being reduced to a form upon which the court can rely, then the appeal ought to be dealt with upon that material and not otherwise. But if the material before the Children’s Court is incapable of being reduced to a form upon which the Court can rely (though that should not be the case) or if between the order being made and the appeal coming on new circumstances developed, or perhaps if important circumstances were not brought to the attention of the Children’s Court this Court, should not be left uninformed in dealing with a S.80(B) appeal”.
I respectfully agree with much of what Eames and Ashley JJ have said but I would not confine the material to what was heard and produced before the Magistrate. The subject matter of any appeal concerning an interim accommodation order is too important to be subject to any strict rules.
This application was heard yesterday. I have been informed that it was recorded, that is the hearing was recorded, but time does not enable the recording to be transcribed and accordingly I am left with a very short outline of what took place before the learned Magistrate. Given those circumstances it seems to me, and bearing in mind the urgency as the appellant sees it, it would be unduly restrictive if I was to deprive the Department of the opportunity of placing all material evidence before me this day, whatever be the form. In this regard, I note that on an application, such as a bail application, this Court not only has sworn evidence but accepts assertions from the Bar table as to factual matters and does consider and rely on those factual matters, if appropriate. Also in the sentencing process in this Court it is well recognised that assertions from the Bar table are matters that are to be considered and taken into account. I would not restrict the material that can be considered on an appeal under s.80(B).
Section 80B(2) provides:
“(2) On an appeal under this section against an interim accommodation order, the Supreme Court must -
(a)If it thinks that a different interim accommodation order should have been made -
(i)set aside the order of the Children’s Court; and
(ii)make any other order which it thinks ought to have been made; or
(b)in any other case, dismiss the appeal.”
(Emphasis added.)
It is clear that if the Court comes to the decision that a different interim order should have been made then it is bound to set aside the order. The main purpose of an interim accommodation order in a case such as the present, is to provide for the placement of the child in a safe environment pending the hearing of a protection application. It is an interim measure designed to ensure that the child is not exposed to any physical or mental danger. It is made in circumstances where a considered decision has been arrived at that the child is in need of protection. It is made usually on untested material and sometimes as a matter of urgency. The paramount consideration must be the welfare of the child. Given the purpose and nature of an interim accommodation order in circumstances where a protection application has been made, the Court on an appeal under s.80B must consider all relevant material placed before it and is not confined to the material before the magistrate. In my opinion, the appeal is a re‑hearing on the material before the magistrate and any other material which is relevant and which is placed before this Court. In this regard I agree with the views expressed by Eames J. If the Court considers another order should have been made then it is bound to set aside the order.
Ms Purcell has annexed in the form of a number of exhibits much information concerning the mother and her children, and also reports of the incidents which are alleged to have taken place on 3, 4 and 5 January this year. This material is untested, it is not on oath and accordingly one must approach it with a degree of care. But having said that, the Court is in a position to carefully consider it and give it such weight as is appropriate.
I should also add that in the other decision to which I referred, namely that of Beach J, His Honour pointed out, and I think this is a relevant matter, that the decision of a Magistrate who is experienced in these matters, should be accorded weight. His Honour did not discuss the nature of the appeal but he did make an observation which I respectfully agree with in the Hien Tu Case. At paragraph 21 he said:-
“The Children’s Court is a specialist court presided over by Magistrates experienced in matters affecting young children with ready access to experts in the field of child care. It is beyond doubt that Magistrates at the Court become very skilled in dealing with children and assessing the veracity of evidence given by them in Court and the complaints they make, particularly complaints of sexual abuse.. This Court should be reluctant to interfere with orders the court made in such matters particularly interim orders which are still subject to further review by the Children’s Court itself, and should only be so where it is abundantly clear that some significant error has been made”.
I would not raise the hurdle as high as that. What I would say is that weight should be accorded to an experienced Magistrate’s decision. The very fact that there is an appeal given against such a decision means that one cannot raise the hurdle quite as high as I think Beach J did in that case. Speaking for myself I take the view that weight should be accorded to decisions made by Magistrates experienced in this area.
The notice of appeal asserted two grounds, and they are as follows:
In exercising her discretion the learned Magistrate erred in that she gave no weight or insufficient weight and no consideration to the following relevant matters:-
(a)The immediate and unacceptable risk of harm for the children whilst living with the mother;
(b)The volatility of the mother’s behaviour and the risk of likelihood of harm resulting from that volatility.
Ms Bazzani emphasised that the conduct of the mother over a period of 3 to 5 January 2004 demonstrated a person who was extremely volatile and likely to put at risk the children’s physical and mental wellbeing. She drew attention to the fact that there were a number of episodes which occurred in front of the children which exposed the children to a potential risk of physical harm and a real risk of mental harm. She noted the presence of the mother’s partner who appears to display aggressive tendencies.
In the present matter, an application has been made for a protection order in rspect of each child. The jurisdiction to make a protection order is found in s.84 and depends upon the Court making a particular finding. For example, it can make an order if the Court finds that “the child is in need of protection”. Section 63 deals with the situation where a child is in need of protection. It is necessary to prove that a ground exists and the grounds are set out in s.63. In the present matter a decision was made by an officer of the Department that the two children are in need of protection. If a protection order is made rights are affected. Under s.86 there are restrictions on the making of a protection order. One matter of considerable importance is where the Court is considering making a protection order that has the effect of removing a child from the custody of his or her parent. See s.86(2). In addition, on the hearing of an application the Court has to have regard to certain matters which are enumerated in s.87. Clearly, the parent has a right to be heard on an application for a protection order. Further, any person who has a right to appear an application for a protection order is entitled to sufficient time to prepare his or her case. This right, together with the Court procedures, usually results in a period of some months between the lodging of the application and the hearing. It is appropriate that in certain circumstances an interim accommodation order should be made. In that sense it is analogous to an interlocutory injunction pending the hearing and determination of the proceeding. Sometimes urgency will dictate that a certain course should be followed because of a risk of harm to a child. Ms Bazzani submitted that the test whether or not an interim accommodation order should be made is that if there is an unacceptable risk of harm to the child then the order should be made. In this regard she was referring to s.87(1)(j) which requires the Court on the hearing of a protective application to have regard to a relevant matter, namely, that a child “is only removed from his or her family if there is an unacceptable risk of harm to the child”. When one considers the provisions concerning an interim accommodation order, the Act does not state what must be satisfied before an order can be made. Ms Bazzani referred to the provision in s.87 but one could also refer to a test stated in s.74(1)(e) which permits the placement of a child in a secure welfare service if “there is a substantial and immediate risk of harm to the child”. However, that is an extreme step and is not the basis of the present application. But it does highlight that there are a number of tests applicable in different circumstances.
Whether or not a court should make an order is a question of discretion. The statutory provisions are silent as to the relevant matters that should be taken into account and does not state any test that must be satisfied. In my opinion, when one considers the provisions of the Act and its purposes, a suitable test is that an interim accommodation order should be granted where it is in the interests of the child to make such an order. It is wide and flexible. It ensures the interests of the child are protected and it also permits the making of an order which is appropriate in all the circumstances. Of course, risk of harm is relevant to consider and determine. But in my view it is not a question of saying that the order can only be made if there is an unacceptable risk of harm to the child. All the circumstances must be looked at. An order must be made if it is in the interests of the child, and the form of order should give effect to those interests. In determining the type of order that should be made the Court is obliged to consider the provisions of s.74.
Given the importance of a flexible discretion in the interests of the child, supports my conclusion as to the nature of the appeal. The present appeal demonstrate the importance of the flexibility. The order was made yesterday. Last night an approach was made to my associate for me to hear an immediate appeal from the order made by the magistrate. It has come on this day. I have no record of what took place before the magistrate other than a very brief summary in the affidavit of the appellant. More importantly, I do not have the reasons of the learned magistrate. One cannot have an appeal in the strict sense, namely, an appeal on the material before the learned magistrate and a consideration of her reasons. The exigency of the circumstances demands flexibility in relation to the appeal. The procedure that is adopted in the Children’s Court is for evidence to be adduced by assertions from counsel for the parties and the parties themselves, and the same procedure appears to be followed in this Court. That procedure has been followed for many years and although it is unusual it is no doubt a procedure adopted because of the urgency of an application and the interests of a child who may be subjected to some form of harmful conduct. Accordingly, I will consider the affidavit of the appellant and the various exhibits which contain a lot of material which is hearsay, untested and also contested, the assertions made by counsel and also in this case the assertions made by the father.
As I said in submissions and I emphasise, this court is concerned with a period of three weeks when the Children’s Court will consider the matter again. What is in the interests of the children? Is it in their interests to be left with their mother? In considering those questions I note the following:-
(a)There has not been any physical violence by the mother or her partner towards the children.
(b)The mother is said by the father of A to be a good mother.
(c)The mother has now been before three authorities in the space of two days facing the prospect of having her children removed. She now knows the importance of behaving and this has been impressed upon her by this Court and also her lawyers.
(d)The order made below imposed a number of stringent conditions, the beach of any one being the catalyst for the removal of her children. Further, conditions can be imposed to ensure that the risk of harm is reduced to negligible proportions.
(e)The mother has a good relationship with at least two members of the police force and it is noted that she is prepared to listen to them and co-operate with them. I do draw attention to the fact that the children were taken into custody as a result of the police attending the home and persuading her that that was what had to be done. This was in the absence of members of the Department.
(f)The risk of harm in the past has been sparked by confrontation with others; the children being observers of it. Any repeat would breach a condition. Of course if a condition was breached the probabilities are indeed very high that the children would be immediately taken from the mother. I expect that the mother would realise the necessity of avoiding confrontation and has learned by her experience over the last week.
(g)That some four days have elapsed since the last incident and apparently there have been no further unfortunate troublesome incidents.
(h)The conditions imposed would ensure close supervision by officers of the Department and the mother is required to co‑operate with them.
(i)The decision was made by an experienced Children’s Court Magistrate who heard the parties over a period of some hours.
(j)Whilst I note this matter, it does not in my view carry a great deal of weight, the child A has expressed a wish to remain with her mother. She is aged eight years.
I have carefully weighed all matters put to me. Ms Bazzani emphasised the concern of the Department. I am dealing with an application that is to provide for a situation over a period of, now slightly less than three weeks, and to focus on the question of what is in the interests of the children.
I also note the views put by the paternal grandmother and also the father of child A, who whilst accepting that the mother was a good mother nevertheless did express some concern and did suggest that she should go to the paternal grandmother. In my opinion, it is in the interests of the children to remain with the mother. I do not accept they are in any danger. To remove them from their mother would be extremely upsetting to them. In reaching that conclusion I gain considerable comfort from the imposition of conditions upon the mother. I emphasise that if she was to breach any one of these conditions, the probabilities are indeed extremely high that the children will be taken from her. I wish to underline to the mother that if she does not comply with these conditions, and there is any risk of harm to the children the likelihood is extremely high that the children will be taken from her.
I have decided this appeal on the material that is before me this day. I have carefully considered it. I have taken into account that a lot of it is untested. I take into account that some of it is contested, but nevertheless I am satisfied that the learned Magistrate did not make any error. In my view a different interim order should not be made. The requirement of s.80B(2)(a) is not made out. Having said that I expressed the view in the course of argument that it may be that some of the conditions could be tightened and I will hear Counsel in relation to that. It may be that there should be a condition which ensures that the officers of the Department of Human services have access to the children if thought necessary.
(Discussion ensued.)
Counsel for the paternal grandmother, the mother and the child A, seek costs against the Department because in reality the appellant has failed. In my view that is how it should be approached. I note what Ms Bazzani said about changing a few of the conditions. The changes to the conditions or two of them, are to clarify and put beyond doubt what may be implicit in the original order. The other condition which I have imposed that the mother must not threaten or assault staff from the Department of Human Services. I have imposed that because as Ms Bazzani points out, that will trigger an application for a different order because of a breach of a condition and this will facilitate it if that was to happen. I think that the reality is that the Department has failed in the appeal. I hear what Ms Bazzani says, I have no doubt the Department was and is concerned and the officers of the Department honestly thought that this matter had to be brought before the Court. However in the end an assessment has to be made. I appreciate the Department is carrying out a very important public service and that it is important that it err, if it errs at all, on the side of caution.
Having said all that, there is an appeal before the Court and the other parties have incurred legal expenses. It seems to me that I should apply the normal rule and that is that the losing party should pay the successful party’s costs of the appeal. I do so, purely and simply on the basis that the appellant has failed but not for one minute am I in any way criticising what the Department has done. But in my view because the respondents to the appeal have incurred costs, it is appropriate that the Department should pay those costs.
Accordingly I will add as paragraph 5 to the minutes of orders, that the appellant pay the mother’s, paternal grandmother’s and child A’s costs of the appeal.
Ms Bazzani do you want me to sign this order in the end?
MS BAZZANI: Yes sir.
HIS HONOUR: All right, well you have to add this, and this is paragraph 6, “That the appellant’s solicitors draw up this order and it be signed by a judge pursuant to rule 60.04(1) of the Rules of Court”. When that is typed up it can be sent to my Associate early next week and I will sign it.
I pronounce the orders set out in those minutes as varied.
(h)is not there but (i) becomes (h) and (j) becomes (i) and I have added those two other orders.
(Discussion ensued.)
The best thing I can do is, if I do have the power I am prepared to amend the order to add that the Department pay the costs of the father which I fix at $150. My only concern is whether I have the power and I will consider that over the weekend.
(Discussion ensued.)
What I am prepared to do is I will indicate now is and we will have to be in touch with your solicitor Ms Bazzani on Monday morning, if I have got the power to award a party’s loss of wages then I will order that the sum of $150 be paid to the father.
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