Hillier v Chief Executive of Department of Disability, Housing and Community Services and Anor [2006] ACTSC 62 (16 June 2006)

Last Updated: 12 February 2007

STEVEN HILLIER v CHIEF EXECUTIVE OF DEPARTMENT OF DISABILITY, HOUSING AND COMMUNITY SERVICES and ANOR

[2006] ACTSC 62 (16 June 2006)

APPEAL - Children's Court - care proceedings - application for leave to appeal out of time - availability of alternative proceedings.

EX TEMPORE JUDGMENT

ON APPEAL FROM THE CHILDREN'S COURT

No SCA 23 of 2006

Judge: Connolly J

Supreme Court of the ACT

Date: 16 June 2006

IN THE SUPREME COURT OF THE )

) No SCA 23 of 2006

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE CHILDREN'S COURT

BETWEEN: STEVEN HILLIER

Applicant

AND: CHIEF EXECUTIVE OF DEPARTMENT OF DISABILITY, HOUSING AND COMMUNITY SERVICES

First Respondent

LEGAL AID, CHILDRENS REPRESENTATIVE

Second Respondent

ORDER

Judge: Connolly J

Date: 16 June 2006

Place: Canberra

THE COURT ORDERS THAT:

1. the application be dismissed.

1. This is a notice of motion for leave to appeal out of time from a decision of the Children's Court constituted by Magistrate Madden on 10 October 2002 in care proceedings in which the two children of Mr Hillier, the applicant, were placed in the care of their maternal grandparents following the murder of their mother.

2. The notice seeks to appeal from that decision and all subsequent orders and, it seems to me, that would be an appropriate way to proceed because care proceedings in the Children's Court, unlike virtually all other proceedings of courts or tribunals, are proceedings that in effect are never closed.

3. Orders are made, but they are always subject to review and they are regularly reviewed at the motion of the Court, the motion of the Chief Executive, as the Chief Executive is the person who has the ultimate custody, or by other interested people.

4. An application for leave to appeal out of time is always discretionary and the length of time is a factor, although there are clearly reasons why Mr Hillier was not in a position to bring this application earlier than this year.

5. The difficulty I have with this application is that while Mr Hillier has legitimate concerns about what he says were procedural errors that he says would justify a reversal of the original decision, it seems to me that given the way events unfolded it would be inevitable that in any review this Court would have to find that the Children's Court acted properly when it removed the children from his custody at the point at which he was charged with their mother's murder, because no court acting in the best interests of children would be expected to do otherwise.

6. Mr Hillier subsequently took the matter following his trial to the Court of Appeal and the Court of Appeal upheld his appeal, and that clearly is a change in circumstances which, it seems to me, would be something that may well be highly relevant to the Children's Court.

7. Mr Hillier is not deprived of a remedy if his application to have leave to bring an appeal three and a half years out of time is refused today. Indeed the issue that he seeks, legitimately and understandably, to agitate, that is to say his custody of, and access to, his children, is best resolved by a tribunal of fact determining at first instance who should have custody of the children, and that is the Children's Court.

8. An appellate review by this Court could really only go to procedural issues, and if it did at the end of the day, if Mr Hillier was entirely successful in his argument at best it would be a Pyrrhic victory because it would only indicate that the original decision and the earlier decision to remove the children was perhaps vitiated by error.

9. But it does seem to me that it must follow that the removal of the children and the order of custody to someone other than Mr Hillier was an inevitable consequence of the charge and committal to this Court and the subsequent trial and jury determination.

10. The best way for that issue to be re-agitated is for Mr Hillier to bring an application before the Children's Court and that Court will proceed with the matter in the way it sees fit, and we have had some indication of what the attitude of the other parties would be, but that is a matter for the Children's Court. Whatever decision is then taken, Mr Hillier, as an interested party, has a right to deal with this Court and bring that appeal within time, to be determined by a judge of this Court.

11. It seems to me that the interests of justice are not served by re-opening a three and a half year old decision to appellate scrutiny when the inevitable outcome would be, even if entirely successful on all points, for the original decision, the subsequent decisions to remove the children from his custody must inevitably have been held to be justified.

12. Events change and a person who is eventually acquitted is in a different situation, but when a person faced a murder charge any court would make the order that the Children's Court made at the time. I am therefore of the view that the application should be refused.

13. That does not mean that Mr Hillier is denied a remedy, because Mr Hillier has the opportunity to lodge proceedings in the Children's Court to seek custody on the basis, as he will say, that circumstances have changed.

14. Now what the Children's Court will make of that application is a matter for them and no doubt evidence will be led and tested in the ordinary way, and that is the better forum because it can look at the merits of the situation rather than the question of procedural review which, at the end of the day, is the process that will only be open to this Court and a process that, even if it made some pointed judgments about procedural errors in the early stages, would inevitably lead to an affirmation of the decision to subsequently remove custody when charges were brought.

15. The application for leave to appeal out of time is therefore refused, I will direct that a transcript be made of my remarks, I will make that available to Mr Hillier so that my reasons are clear, but I will not deliver a separate written judgment of what I have said today.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly

Associate:

Date: 16 June 2006

Counsel for the Applicant: Applicant in person

Solicitor for the Applicant: -

Counsel for the First Respondent: Dr D Jarvis

Solicitor for the First Respondent: ACT Government Solicitor

Counsel for the Second Respondent: Mr M Hockridge

Solicitor for the Second Respondent: ACT Legal Aid Office

Date of hearing: 16 June 2006

Date of judgment: 16 June 2006