Sani (a pseudonym) v Secretary of the Department of Families, Fairness and Housing (No 2)
[2022] VSC 276
•26 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 04383
| CHELSEA SANI (a pseudonym) | Appellant |
| v | |
| SECRETARY OF THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING | First Respondent |
| NATE LEWORTHY (a pseudonym) | Second Respondent |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 May 2022 |
DATE OF JUDGMENT: | 26 May 2022 |
CASE MAY BE CITED AS: | Sani (a pseudonym) v Secretary of the Department of Families, Fairness and Housing (No 2) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 276 |
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APPEAL – Children’s Court of Victoria – Extension of interim accommodation order – Where extension of interim accommodation order cannot be appealed under s 271(1)(b) Children, Youth and Families Act 2005 (Vic) – Where appellant did not file any evidence in support of appeal – Where appellant did not appear at hearing – Sani (a pseudonym) v Secretary of the Department of Families, Fairness and Housing [2021] VSC 366.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | No appearance | |
| For the First Respondent | Dr I Freckelton QC | Department of Families, Fairness and Housing |
| For the Second Respondent | No appearance |
TABLE OF CONTENTS
A. Background................................................................................................................................... 1
B. The events of 1 November 2021.................................................................................................. 2
C. Ms Sani’s appeal to this Court................................................................................................... 3
D. The appeal fails for lack of material and appearance........................................................... 5
E. Is the appeal competent?............................................................................................................. 5
F. Would the appeal have failed in any event?........................................................................... 7
G. Further observations................................................................................................................. 12
H. Disposition.................................................................................................................................. 13
HIS HONOUR:
A. Background
Ms Sani,[1] the appellant, is the mother of a boy, Cooper,[2] who was born in 2015 and will turn seven later this year. Ms Sani and Cooper’s father, Nate Leworthy,[3] who is the second respondent, are no longer together. Cooper’s father has re-partnered.
[1]A pseudonym. I have used the same pseudonyms as Moore J used in Sani v Secretary of the Secretary of Families, Fairness and Housing [2021] VSC 366.
[2]A pseudonym.
[3]A pseudonym.
On 26 June 2020, the Secretary of the Department of Families, Fairness and Housing, the first respondent, served a notice under s 240 of the Children, Youth and Families Act 2005 (the ‘Act’) that an application for a protection order under s 274 of the Act would be made, and applied the same day for an interim accommodation order under s 262 of the Act. An interim accommodation order was made by the Children’s Court of Victoria pursuant to which Cooper was released into the care of his father. That interim accommodation order has been extended (or perhaps remade) on a number of occasions since that time, and Cooper continues to reside with his father and stepmother. Ms Sani has limited and supervised access. The Secretary’s application for a protection order has not yet been heard, but is currently listed to be heard in the Children’s Court on 22 June 2022 (that is, next month).
In June last year, an appeal by Ms Sani against the interim accommodation order was heard in this Court.[4] Moore J, after reviewing extensive material, did not consider that a different interim accommodation order to the June 2020 order, as subsequently varied, should have been made.[5] In reaching that conclusion, his Honour concluded that there was ‘a clear risk of harm’ to Cooper if he were to be in the care of Ms Sani,[6] and that there was ‘no issue about the suitability of [Cooper’s father] and his stepmother caring for Cooper’.[7] The evidence before him was to the effect that Cooper was doing well. Accordingly, the appeal was dismissed.
[4][2021] VSC 366. There was an issue as to the scope of her appeal. The appeal documents referred to an interim accommodation order said to have been made on 22 February 2021. Moore J concluded that there was no power to the appeal against the order made on that date, as the order made on that date was not an interim accommodation order but was an extension of an existing interim accommodation order. However, Moore J granted Ms Sani leave to amend the notice of appeal to include a challenge to the interim accommodation order made on 26 June 2020.
[5]Ibid [131].
[6]Ibid [113].
[7]Ibid [121].
Ms Sani has now filed another notice of appeal by which she appeals against what she describes as an interim accommodation order dated 1 November 2021 made on 8 November 2021 but backdated under the ‘slip rule’. Accordingly, it is necessary to consider what happened in November 2021.
B. The events of 1 November 2021
On 17 August 2021, the Children’s Court listed the Secretary’s application for a protection order for a contested hearing on 11 November 2021. It also, on that day, extended the interim accommodation order already in place ‘pending the hearing, or the resumption of the hearing’.
The matter came back before the Children’s Court on 1 November 2021. The magistrate presiding was the same magistrate who had made and extended the previous interim accommodation order or orders. Ms Sani and the Secretary both appeared.[8] The transcript of that day reveals that:
[8]Albeit that Ms Sani appeared by telephone.
(a) Ms Sani had recently made an application for an intervention order against ‘the protective worker’, whom I take to be an employee of the Secretary who was or had been involved in the Secretary’s application for a protection order and had been dealing in some way with Ms Sani;
(b) Ms Sani had recently made an application for an intervention order against Cooper’s father;
(c) Ms Sani had made a complaint to the ‘judicial commission’ about the conduct of the magistrate who was handling the matter;
(d) Ms Sani intended to call 10 witnesses at the hearing; and
(e) notwithstanding Ms Sani’s desire to retain the 11 November 2021 date, that date was vacated due to the unavailability of a magistrate on that day to hear a lengthy case and the matter was relisted for hearing on 27 June 2022 with a 10 day estimate. It was clear that the magistrate against whom Ms Sani had made a complaint did not propose to hear the substantive application.
The certified extracts from the Children’s Court indicates that the following orders were made on 1 November 2021:
(a) the Department of Families, Fairness and Housing file and serve any further report upon which it proposes to rely no later than 30 May 2022;
(b) the contest listed for 11 November 2021 is vacated; and
(c) if the Heidelberg Magistrates’ Court is in agreement, the intervention order proceedings between the mother and the father can be heard at the same time as the Children’s Court contest.
The certified extracts also includes the following:
INTERIM ACCOMMODATION ORDER: order that the child be released into the care of … [his father] … pending the hearing, or the resumption of the hearing.
THIS ORDER EXTENDS AND HAS THE SAME CONDITIONS AS THE ORDER MADE LAST EXTENDED ON 17/08/2021.
The attached 11 conditions apply to this Extension Of Interim Accommodation Order.
The attached 11 conditions were the same conditions that had been attached to the previous interim accommodation orders, or extensions of those orders, for many months and the same conditions that were in place at the time the previous appeal was heard by Moore J in June 2021.
C. Ms Sani’s appeal to this Court
By her notice of appeal filed on 15 November 2021, Ms Sani seeks the following:
Quash IOA. Do not send back to Magistrate Mrs MacPherson or the Broadmeadows Children court. Injunction against the Secretary and/or father from interfering with [Cooper’s] right to his mother. Continue with signed agreement between mother and father for shared care signed in Heidelberg magistrates court in 2019.
The sole ground of appeal identified is:
Child’s best interest.
The appeal is expressed to be brought pursuant to s 271(1)(b) of the Act. That section allows an appeal against ‘an interim accommodation order’. Section 271(2) provides that:
(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 that it thinks ought to have been made; or
(b) in any other case, dismiss the appeal.
Ms Sani has also circulated, but has not formally filed, a notice of appeal also dated 15 November 2021 that is in a slightly different form. The grounds of appeal in this document are set out in paragraph 29 below.
On 8 December 2021, the Court ordered Ms Sani to file and serve an affidavit under r 58.19 of the Supreme Court (General Civil Procedure) Rules 2015 on or before 28 January 2022. On 9 February 2022, the Court ordered Ms Sani to file and serve any affidavit on which she intends to rely, and serve any proposed amended notice of appeal, on or before 18 February 2022. On 23 February 2022, Ms Sani was given leave to file and serve an amended notice of appeal and any affidavit on which she intends to rely on before 9 March 2022, and was ordered, among other things, to file and serve a written outline of submissions of no more than five pages on or before 12 April 2022, and a list of authorities on or before 26 April 2022.
Ms Sani has not filed any sworn affidavits in support of her appeal. She has circulated (but not formally filed) two unsworn affidavits dated 24 January 2022 and an unsworn affidavit dated 18 February 2022, and has written directly to the Court. The Secretary has filed two affidavits affirmed by Emma Pope, who had oversight of the case, on 6 April 2022 and 22 April 2022, and an affidavit affirmed by Sarah Louise Masters, a special counsel with the child protection litigation office in the Department of Families, Fairness and Housing, on 27 April 2022.
D. The appeal fails for lack of material and appearance
On the morning that the appeal was listed for hearing, Ms Sani emailed the Court advising that she would not be in attendance, essentially due to the stress involved. She did not ask for an adjournment or provide any medical material indicating that she was medically unable to attend. Accordingly, when the appeal was called on for hearing, no one appeared to prosecute it.
Also, Ms Sani has not placed any evidence before me in support of her appeal. Unsworn affidavits, or letters or other communications containing unsworn assertions, are not evidence. Accordingly, there is no evidence before me by her upon which I could properly conclude that ‘a different interim accommodation order should have been made’[9] and set aside the order made by the Children’s Court.
[9]Children, Youth and Families Act 2005 (Vic) s 271(2)(a).
For the above reasons, the appeal must be dismissed.
In the circumstances, however, I consider it appropriate to consider some of the issues that the appeal would otherwise present.
E. Is the appeal competent?
The Act explicitly differentiates between the making of an interim accommodation order and the extension of an existing interim accommodation order. Ms Sani’s notice of appeal says it is brought under s 271 of the Act. In his decision on Ms Sani’s previous appeal, Moore J concluded that there is no appeal under s 271 of the Act against the extension of an interim accommodation order.[10] I will not repeat here his reasons for so concluding. Although I am not bound by Moore J’s decision, I ought to follow it unless I am satisfied that it is clearly wrong. I am not so satisfied.
[10][2021] VSC 366, [21]–[25].
Although there is some ambiguity in the way the order referred to in paragraph 8 above is recorded, I consider that it is better characterised as an extension of an interim accommodation order, rather than the making of an interim accommodation order. I have concluded this not just because of the way the order is expressed, but also because of the way in which it was obtained and the context in which it was made.
As noted above, an interim accommodation order was initially made on 26 June 2020. The order was made in accordance with Form 12,[11] which is the form applicable to orders under ss 262 and 263 of the Act, and was in any event expressed to be made pursuant to ss 262 and 263 of the Act. Section 262 is headed ‘Interim accommodation order’, and s 263 is headed ‘Conditions of interim accommodation order’. Further, the order itself commences as follows:
I order that the child be placed on an Interim Accommodation Order.
[11]Children, Youth and Families (Children’s Court Family Division) Rules 2017 (Vic) r 6.
There were thereafter a series of orders expressed in similar terms to the order made on 1 November 2021 referred to in paragraph 8 above, made, as I understand it, on every occasion the matter came before the magistrate.
On 1 November 2021, after the magistrate had indicated the administrative orders and direction she was proposing to make in relation to the upcoming hearing, the parties provided proposed minutes of orders. This was a requirement of a practice direction of the Children’s Court.[12] This was done by the parties checking boxes and filling out details on a form made available for this purpose. The parties had not in fact discussed the interim accommodation order during the directions hearing. The Secretary, among other things, checked the box alongside the words ‘The current interim accommodation order is extended’, indicating that they sought an extension of the subsisting interim accommodation order. Ms Sani did not check that box. This led to some email communications to the Court. The email from the Secretary referred to Ms Sani’s contention that the interim accommodation order had not been extended. The Secretary’s email to the Court said:
In the event that there was no explicit comment made in respect of the IAO extension, we respectfully submit that the order should be extended by way of this slip rule…
[12]Children’s Court of Victoria, Practice Direction No. Six of 2021: Family Division-Child Protection Proceedings, 5 July 2021, [10].
Ms Sani objected by email to this being done and contended that the subsisting interim accommodation order ‘has expired … as it has not been extended’.
Then, the Court made an order that included the words set out in paragraph 8 above.
Seen in that context, the order made on 1 November 2021 was and was intended to be an extension of the subsisting interim accommodation order, rather than the making of a fresh interim accommodation order. Accordingly, for the reasons given by Moore J, no appeal against that order lies under s 271(1)(b) of the Act, and this appeal is incompetent and must be dismissed. For what it is worth, I would not characterise it as an order that was made under the ‘slip rule’.
Also, almost all of the relief that Ms Sani seeks would be too wide. I accept that on the hearing of the appeal I could, if I were satisfied that the order in question was an interim accommodation order rather than an extension of a subsisting interim accommodation order, and that it was appropriate to do so, quash the interim accommodation order and make an alternative interim accommodation order. However, Ms Sani also seeks an order that I enjoin the Secretary or Cooper’s father from interfering with Cooper’s right to his mother, and in some way ‘continue’ an agreement apparently reached between her and him in 2019. No proper basis has been identified for which I could make those orders.
F. Would the appeal have failed in any event?
Ms Sani has also circulated, but has not formally filed, a notice of appeal also dated 15 November 2021 that is in a different form. This document identifies the grounds of appeal as follows:
1. Is the IAO in place in my Child’s best interest?
• I am the primary attachment for Cooper.
2. Was there an Error of law on the face of the record?
• A breach of the natural justice rules occurred. I was not provided or informed as fully as possible of what was alleged against me. I was not allowed An adequate opportunity to be heard and/or all my argument considered as a person who is aggrieved by the decision.
3. Was the decision an improper exercise of power?
• The procedures that were required by law to be observed in connection with the making of a decision were not observed.
3. Did the decision involve an error of law on the face of the record?
• Child protection improperly made the application by way of emergency care.
4. Was it wrong to make a IAO as Magistrate Macpherson who purported to make the decision might not have had the jurisdiction to make their decision?
• The statutory power could be exercised only on the happening of a certain event and that event had not happened.
Even having regard to those grounds of appeal, and even if I were to treat the unsworn material provided to the court by Ms Sani as evidence, the affidavit evidence filed by the Secretary was such that I would not be persuaded that a different interim accommodation order should have been made by the Children’s Court.
The affidavit material filed by the Secretary establishes that:
(a) on various occasions, Ms Sani has expressed to authorities her concern about how Cooper’s father was treating Cooper. When these complaints were investigated, it was concluded that they were without foundation. For example, in December last year Ms Sani sought police attendance at Cooper’s father’s address. Police attended and reported that Cooper had presented as ‘happy, calm and clean’, and that the attending police held ‘no concerns’ for Cooper;
(b) Ms Sani has presented on occasions behaving erratically and there is reason to think that Ms Sani might still be struggling with illicit substance use. In 2020 the Children’s Court ordered Ms Sani to undergo supervised urine testing. Ms Sani has refused to complete that supervised urine testing. The Secretary has sought to establish a process of hair follicle testing. Again, Ms Sani has refused to participate in that testing, even when it was or must have been apparent to her that her ability to have increased contact with her son would be very much improved were she to agree to undergo that testing regime. She has, instead, asserted that she no longer takes illicit substances and has provided on occasions reports of urine testing arranged by her that do not reveal illicit substances. Notwithstanding that the tests arranged and provided by her were clear, I am satisfied that her refusal to participate in testing regimes arranged by others leads to a legitimate concern that she continues to struggle with illicit substance use and that that is affecting her mental health;
(c) there is reason to believe that Ms Sani has ongoing contact with an ex-partner who was released from prison last year and who has a history of violence towards her. There is reason to believe that he also holds the delusional belief that he is God and that Cooper is his child. Ms Sani has previously reported a concern that this person poses a risk to Cooper. Although Ms Sani has sought to retract that assertion, there remains a risk that, if Cooper were with Ms Sani, she could not protect him from exposure to domestic violence; and
(d) Ms Sani is combative in her dealings with the Secretary and is not prepared to ‘work with’ the Secretary. She does not seem to comprehend the need for child protection involvement. There could be little confidence that she would comply adequately with conditions that would all need to be imposed in any interim accommodation order that resulted in Cooper being in her care.
Importantly, there is no material before me to suggest that Cooper is in any present danger. Ms Sani, as I read her communications to the Court, considered together, is focused on what she perceives to be an inappropriate restriction on her ability to be involved in Cooper’s life, and her concern that Cooper is suffering from her lack of involvement. She contends that the Secretary has treated her unfairly. For example, she asserts that:
any reasonable person who read the file would find it proven that the Secretary has acted in a way that has harmed my child and further interference from the government in Cooper’s life and privacy of his family will continue to have negative impacts from my child and I.
She does not assert, however, as I read her material, that Cooper is in any immediate danger from his father. Indeed, it seems clear that Cooper’s father and his partner are providing appropriate care for Cooper.
I am aware that Ms Sani disputes all or most of the matters set out in paragraph 31 above, contends that the Secretary’s material does not create an accurate picture of her, and contends that the Secretary has mistreated her. It is possible that, in any contested hearing in the future in the Children’s Court, Ms Sani will be able to persuade that Court of those matters. Nothing I say in these reasons is intended to preclude Ms Sani from making such arguments in that regard as she wishes in any subsequent contested application. I accept, also, that Ms Sani’s limited access to Cooper causes her some distress. However, I must determine this appeal on the basis of the material presently before me. On the basis of that material, I am not persuaded that a different interim accommodation order to that presently in place should have been made.
I observe, also, that Cooper has been with his father for many months now, and the Secretary’s application for protection order is listed to be heard next month. Presumably, any decision made by the Children’s Court following the hearing listed for next month will be a cause for the existing interim accommodation order to end or at least to be reviewed.
Finally, I am not satisfied that any of the grounds referred to in paragraph 29 above are made out. More specifically:
(a) There is no reason to conclude that Ms Sani is the ‘primary attachment’ for Cooper. That is her assertion, but there is no evidence to that effect.
(b) As the summary set out in paragraphs 5 to 9 above shows, the 1 November 2021 hearing was a directions hearing or mention. The application for a protection order, that is, the substantive application, was set down for hearing next month with an estimate of 10 days, before a magistrate other than the magistrate about whom Ms Sani had made a complaint, and provision was made for ensuring that the witnesses that Ms Sani wish to call would be subpoenaed. Ms Sani has not identified what arguments she wished to put at this hearing that she was prevented from putting, nor how she was denied natural justice.
(c) I will consider the final three points together. As I understand them, they relate to the assertion earlier made in the document that the extension of the interim accommodation order was not made at the 1 November 2020 hearing but was made at a later date or was otherwise improperly made. As noted above, the evidence establishes that, after the directions hearing had taken place on 1 November 2021, minutes of proposed orders were circulated and representations made to the Court by email. Contrary to the assertion in the notice of appeal, on the evidence before me the order was in fact made on 1 November 2021 and was not ‘backdated’. Further, the only statutory pre-condition on the making of an order extending an interim accommodation order was that the court be ‘satisfied that it is in the best interests of the child to do so’.[13] In reaching that conclusion, the Court was not bound by the rules of evidence; it was entitled ‘to inform itself on a matter in such manner as it thinks fit, despite any rules of evidence to the contrary’.[14] In managing child protection proceedings, it was entitled to deal with matters ‘without requiring the parties to attend Court’[15] and do what ‘the Court thinks fit.’[16] The magistrate who made the order extending the interim accommodation order was the same magistrate who had first made the interim accommodation order on 26 June 2020 and had had the carriage of the matter since that time. She had, previously, extended the interim accommodation order or varied the conditions of the interim accommodation order on at least nine prior occasions. In those circumstances, I would be prepared to infer that the magistrate formed the view that it was in the interests of the child that she extend the interim accommodation order, and that she formed that view having regard to her accumulated knowledge of the child’s circumstances.
G. Further observations
[13]Children, Youth and Families Act 2005 s 267(2)(a).
[14]Ibid s 215(1)(d).
[15]Ibid s 215B(1)(k).
[16]Ibid s 215B(1)(l).
In light of some discussions that were had with counsel for the Secretary in Court, I also wish to say the following.
The interim accommodation order made on 26 June 2020 was expressed to be ‘until further order’ and ordered the release of Cooper into his father’s care ‘pending the hearing or the resumption of the hearing’. The 10 subsequent orders made were also expressed to be ‘pending the hearing or the resumption of the hearing’. They, clearly, were referring to the hearing of the application by the Secretary for the protection order. But the question arises as to whether those words meant that the interim accommodation order was to operate until the trial of the protection application (which has not yet taken place), or whether the interim accommodation order was to operate only until the matter next came back before the Court if only for mention or for some other procedural reason.
My initial inclination, that I provisionally expressed to counsel for the Secretary in Court, was that the former was probably right; ‘the hearing’ was a reference to the contest (or trial) where the application for the protection order was to be heard and determined. If this were right, it would mean that there have been a series of unnecessary ‘extensions’ of a subsisting interim accommodation order that still has not expired. But on further reflection, the matter is not clear. The document published by the Children’s Court that set out the 26 June 2020 order has a box immediately below the words set out above that is headed: ‘Where a further hearing will be held’. The document then identifies the next date upon which the matter was to come back before the Children’s Court, and, after the words ‘hearing type’, said the case would be ‘listed as a Mention’ and would ‘not be listed as a contest on the next date’. That suggests that, read in context, the word ‘hearing’ may have been intended to refer to the next occasion upon which the matter was to come back before the Children’s Court. This would also be consistent with the use of the phrase ‘or the resumption of the hearing’, which tends, perhaps, to suggest that each appearance was a ‘hearing’ and each but the first appearance was a resumption of that hearing. It would also be consistent with the fact that the Children’s Court did, on each occasion, extend (or purport to extend) the interim accommodation order. On reflection, my expressed initial inclination may well have been incorrect.
Not every order that ‘extended’ the interim accommodation order contained a box that suggested that the next date upon which the proceeding would come before the Children’s Court would be a ‘hearing’. For example, an order made on 8 September 2020 that was expressed to vary and to extend the previous interim accommodation order, and to do so ‘pending the hearing, or the resumption of the hearing’, otherwise merely adjourned the matter for mention on a specified date. Be that as it may, given the uncertainty, and given that the matter does not have to be determined in this appeal and was not the subject of full argument, I will say nothing more about this issue in these reasons.
H. Disposition
For the reasons set out above, the appeal will be dismissed.
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