"R" v Department of Community Services

[2001] NSWSC 419

CITATION:	"R" v DEPARTMENT OF COMMUNITY SERVICES [2001] NSWSC 419
FILE NUMBER(S):	SC 10880/01
HEARING DATE(S):	15 May 2001
JUDGMENT DATE:	15 May 2001
PARTIES :	Plaintiff: "R" Defendant: Department of Community Services
JUDGMENT OF:	Hulme J at 1

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Magistrate Mitchell

COUNSEL :	Plaintiff: In person Defendant: Mr AC Johnson
SOLICITORS:	Plaintiff: In person Defendant: IV Knight Crown Solicitor
DECISION:	Summons dismissed

- 11 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

NO: 10880/01

Tuesday, 15 May 2001

JUDGMENT

R v DEPARTMENT OF COMMUNITY SERVICES

NON-PUBLICATION ORDER

1    HIS HONOUR: I have before me an application by Richard S to whom I have referred in the title above as “R”, the father of JS for the return of his almost 2 year old daughter to him.

2    The background against which the application is made is that in January of 2000 the child was removed by the Department of Community Services when some six months old. A care application was lodged, and in October last, Mr Barnett, a children's Magistrate, made orders placing the child in the care of her maternal grandmother until the age of eighteen years. An appeal was lodged to the District Court and came before Judge Puckeridge. His Honour, on 30 November, dismissed that appeal, although in doing so disagreed with a number of findings made by Mr Barnett.

3    On 18 December last an application was made by Mr S and his wife, they having been the appellants in the District Court, seeking a rescission of the order placing the child in the care of its maternal grandmother. On 19 January another application was lodged, this time by Mr S, seeking that his daughter be returned to him. An affidavit in support of that application indicates that although in an apparently unsigned affidavit lodged in support of the December application, Mr and Mrs S had said they had a loving, strong and secure relationship, they had in fact separated on 5 January when the wife left the matrimonial home.

4    The matter or matters - for the moment I do not differentiate - came before Mr Mitchell, a children's Magistrate, on 19 February being dealt with as an application under section 90 of the Children and Young Persons' Care and Protection Act for leave to make an application for rescission or variation of the care order then in force. Mr Mitchell refused such leave. Then on 28 March the summons was filed in this Court.

5    Mr S has appeared for himself in these proceedings, though he has had the support of his wife who joined him at the Bar Table, and whom I allowed to address me in addition to such remarks as Mr S himself cared to make. It seems to me that given the nature of the application and the circumstances of the parties, this was an appropriate course. The application was opposed by the Department of Community Services.

6 The applicant faces some difficulties created by the nature of this Court's jurisdiction to deal with the matter. One possible basis for the Court to intervene arises under part 5 of the Justices Act and, in particular, section 104 subsection (4) of which provides that a defendant or an informant may appeal against any interlocutory order that is made by a Magistrate in summary proceedings on a ground that involves a question of law alone. There is, I think, a deal to be said for the view that an order made on an application for leave is an interlocutory order.

7    The second basis upon which it was submitted that this Court could act was under its parens patria powers applicable in the case of children. In that regard mention may be made of s 247 of the Act which is to the effect that nothing in the Children and Young Persons' Care and Protection Act limits the jurisdiction of the Supreme Court. A difficulty which arises so far as that power is concerned in this case is that it would involve the Court hearing, as it were, de novo an application effectively for custody of the child and that the material which has been presented to the Court, together with the interim processes within the Court prior to today, indicate that no party prepared or has presented the case in the detail necessary for the Court to deal with it as a substantive application for a care order. Both the decisions of Mr Barnett and the decisions of Judge Puckeridge indicate that there was canvassed at considerable length the fitness of both Mr S and his wife to have the care of JS. In light of the issues in those respects which were canvassed, and which are obviously to a not insignificant extent still contentious between Mr S and his wife on the one hand and the Department on the other, it is clearly impossible for me to deal with the matter as a de novo or substantive application without consideration of those issues and much more evidence on them than has been put before me.

8    One need only, by way of amplification, refer to the fact that the estimated time for the hearing was not more than one day as recorded in the Record of Proceedings of Justice Sperling's Associate on 23 April, whereas the hearings before Mr Barnett and Judge Puckeridge each took three days or longer. Accordingly, I do not feel it possible to deal with the matter as a substantive application, notwithstanding Mr S has requested me to do so and notwithstanding his understandable view that he may not or will not receive a proper hearing before a Children's Court.

9    Any substantive application by Mr S and his wife must, in their interests, deal with the issues which have been commented on or the subject of findings adverse to them by the three judicial officers who have previously dealt with the matter. In saying that, I make it clear I do not embrace those findings, and there are certainly some of Mr Barnett's which Judge Puckeridge was not prepared to embrace. However, I have not heard sufficient evidence or any cross-examination, matters which would be necessary before I could come to any persuaded view about them.

10 I turn then to deal with the matter pursuant to the Court's supervisory jurisdiction under the Justices Act. One matter which is of concern is the fact that Mr Mitchell's reasons would seem to have proceeded on the basis that he was considering not Mr S's application of 19 January but rather the joint application of December. Although I appreciate his reasons were delivered extempore, His Worship opened them with the observation, "This is an application brought by a mother and father", and concludes them with the words "in the circumstances the application of 28 December for leave under section 90 is dismissed." The figure "28" is clearly wrong. An application was lodged on 18 December, but it is that application rather than one of 19 January to which I understand the words just quoted refer. Furthermore, on the bottom of page 15 of the transcript of His Worship's reasons he refers to the proceedings in the District Court and remarks that he would "have been very surprised if within three weeks of those events the circumstances had changed to the extent to justify a rescission application". Those words are apposite to refer to the joint application but not to Mr S's alone. There is, elsewhere in His Worship's reasons, a reference to the application "by the mother and the father" and to "the father's case essentially is", but the latter reference does not persuade me that His Worship was not dealing as the other passages I have cited indicate he was, with the joint application. In that, it seems to me His Worship was in error.

11    On more substantive matters, His Worship obviously relied on primarily, three or possibly four particular matters One was the apparent inconsistency between an affidavit, even if unsworn, of December 2000, and Mr S's affidavit of 19 January, in particular, the difference in those affidavits on the topic of cohabitation and the relationship between the parties. Having read both documents, and even though I am conscious that Mr S and, perhaps, also his wife has sought to provide me with an explanation of the radical change in their situation, the separation only about three weeks after there was said to be a "loving, strong and secure relationship" is obviously a cause for concern. Mrs S's suggestion that the reason she left Mr S was because it would increase her chances in relation to the child, a proposition which would seem to have been inspired by a letter of 11 October to her from Miss Egan and Miss Elizabeth Ryan of the Department, nevertheless does not explain the fact that this application is being pursued by Mr S. Again, I acknowledge that there are explanations or possible explanations for that, given what seems to be the domestic situation of both. However, one can understand Mr Mitchell's concern.

12    The second matter upon which Mr Mitchell seems to have relied is Mrs S's heroin dependency which he concluded "she had had since childhood and continues to have". Again, there was some evidence from Mr S which indicated that Mrs S still was dependent on heroin on 5 January and although there was again some evidence explanatory of statements by him in that regard, the totality of the evidence on the topic was not entirely satisfactory, at least from the point of view of Mr and Mrs S. I say that notwithstanding I think there is a deal to be said for the view that Mrs S has in fact overcome her heroin dependency. She so asserted before me. See seems to have persuaded Judge Puckeridge that she had at that stage, and we are now six months, approximately, from his Honour's decision and Mrs S's advocacy today was such as to incline me fairly firmly to the view that she's not presently under the influence of drugs. Urinalysis results which are before me, although not sufficiently frequent to exclude the possibility of addiction, certainly argue reasonably strongly in that direction.

13    The third matter upon which Mr Mitchell relied was that the application he thought he was considering was within three weeks of the decision of Judge Puckeridge. The applicants submit that certainly by the time of the January application there had been a significant change in relevant circumstances, in particular the fact that Mrs S had left her husband. Thus it was said there was no risk of JS being cared for by a heroin addicted mother.

14    Although it has been asserted before me that if she was under the influence of drugs, Mr S would not allow Mrs S to have anything to do with JS, at least one answer he gave in the course of proceedings before Mr Mitchell is to contrary effect. On page 9 of the transcript of 19 February the following questions and answers appear. The witness was Mr S:

"Q. What sort of contact will she have with her mother?
A. Well at the time she has me and her, we talked about it and she is free to see the child any time she wants.
Q. Whether she's drug addicted or not?
A. Any time she wants to, yeah".

15    I can well understand Mr and Mrs S thinking that their separation was a significant change envisaged in section 90 as a circumstance which would justify leave being granted to make a further application for a care order. However, it would be a very, very rare case indeed where a court would, within a period of simply weeks, be likely to regard a significant change as having occurred. Just as a change occurred between the 18 December application and Mrs S's departure on 5 January from the matrimonial home, so may it be that a change might have occurred in the other direction also within a matter of weeks. Courts, in judging to whom the custody or care of children should be granted, look necessarily for stability, and the change between 18 December and 5 January is one which argues against that circumstance existing. I am sure that if the matter had come before me on 5 January, I also would have taken the view that insufficient stability had been proved to exist and insufficient time had passed since the decision of Judge Puckeridge to justify any further application for care being then made.

16    The fourth matter relied on by Mr Mitchell was what was described as the disturbing “substantially unexplained” content of paragraph 8 of a report prepared by the Department. Paragraphs 7 and 8 of that report dated 12 February 2001 are in these terms:

"7. On 31 January DOCS received information that Mrs S was found by the police with another female at Balgownie Street Wollongong surrounded by heroin.
8. On 7 February DOCS received information that Mrs S was again separated from Mr S and living back in Wollongong. That Mr S was phoning Mrs S's friends and pressuring them to provide information on her whereabouts. That he was threatening people if they refused to provide information and was pressuring them by ringing nonstop day and night. This behaviour is typical of Mr S when Mrs S leaves him and he is trying to get her back. This behaviour has been described by a number of other people involved with Mr S. DOCS was also informed that Mrs S had recently returned to Mr S, not of her own freewill. Mr S had grabbed her in Wollongong and forced her to return to Ryde. Mrs S left the home at night when Mr S was asleep".

17    Before Mr Mitchell, Mr S was asked questions concerning some of the statements in paragraph 8 and he said, "No, that's all false information", and that he had no reason to carry on that way. He denied also a second aspect of that paragraph about which he was questioned. That finding by the Magistrate that the content of paragraph 8 "has been substantially unexplained" seems to me clearly erroneous or, alternatively, to completely miss the point. I do not see how a witness who has denied an event happened at all - as Mr S did - can fairly be said to have left the allegation "substantially unexplained". Of course, the Magistrate did not have to believe Mr S, but His Worship's reasons in this regard do not seem to me to even address that matter.

18    But I should not leave my reference to paragraphs 7 and 8 without saying something further about them. In a report by the same authors dated 20 March it is said that the information contained in paragraph 7 had been checked with police and the authors had been informed that the information "was an information report only and not confirmed by the police". Even without this revealing further evidence, I would have taken the view that no Court should have placed reliance on statements of the nature of those contained in paragraph 8 and that except in extraordinary circumstances where there was a reasonable explanation given for doing so, no report in those terms should ever be put before a court. I say that notwithstanding the terms of section 93 of the Children and Young Persons' Care and Protection Act which require that proceedings before the Children's Court are to be conducted with as legal formality and legal technicality and form as the circumstances of the case permit, and that the Children's Court is not bound by the rules of evidence.

19    The Children and Young Persons' Care and Protection Act is not the first Act which has directed particular courts not to be bound by the rules of evidence. Nevertheless, the authorities going back to the beginning of this century, if not earlier, are clear that for material to be relied upon it must have some apparent credibility. Nothing is stated as to the source or sources of the information referred to in paragraphs 7 or 8. It is highly damaging if accepted and, given that fact, should not have been stated or acted upon without some, at least moderate, indication of reliability. There is absolutely none. I can appreciate that there may well be times when information comes to the attention of DOCS and it is undesirable that the sources of that information be stated, but the generality of expression in paragraph 8 is such that I am led to the conclusion which I have expressed.

20    How, one might ask, could anyone possibly challenge the information or statements there contained, whether first, second or third hand hearsay, statements that Mr S was threatening people, pressuring people, or the expression of opinion by the authors of the report - on what information one knows not, that this behaviour was "typical of Mr S". For courts to rely on information of this nature is almost to deny the concept of natural Justice.

21    I have gone on, on some matters at greater length than I perhaps need to have. I have done so because it seems to me that the errors in what has occurred in court before Mr Mitchell are of a nature that they should be specifically adverted to. Although there clearly are matters adverse to the claims of Mr and Mrs or Mr S which would concern any Court, and I am not making a judgment on their entitlement to care, nevertheless, they might fairly feel that they are entitled to more consideration than they in fact received.

22    Having regard to their right to make a further application under section 90 and having regard to the errors which, as I see it, Mr Mitchell made, I am disinclined to grant them relief of setting aside his orders and remitting the matter to him, because I think they would be better served by making a fresh application which I would expect to come before a different magistrate. For reasons I have indicated earlier, I am just unable, on the material before me, to myself deal with the matter as if I were hearing it as an original Tribunal.

23    I would, perhaps, add this advice: The number of matters which have arisen and the apparent inconsistency in the evidence which Mr and Mrs S have given in the course of statements to the Court, is such that they really need someone to have a critical look at their case and to address those inconsistencies before any further application is heard. Obviously their credibility is a matter which is of significance, but if indeed Mrs S has been free of heroin for some twelve months, if indeed evidence can be obtained that both she and Mr S are fit parents, then they would be well advised to seek legal assistance to have their case considered in somewhat greater detail than it was on the last occasion they came before the Magistrate's Court.

24    Accordingly, I dismiss the summons. I order that there be no publication of my reasons delivered today. In the final version of these reasons I will alter the reference to the parties and the child so as to conceal their identity and then those reasons will be able to be published.

Last Modified: 05/30/2001