The Department of Communities and Justice (DCJ) and the Rasooli Children [2021] NSWChC 4

Children's Court New South Wales

Medium Neutral Citation: The Department of Communities and Justice (DCJ) and the Rasooli Children [2021] NSWChC 4 Hearing dates: 27, 28, 29 and 30 April 2021 at Parramatta; and 9, 10 and 11 November 2021 at Surry Hills Decision date: 09 November 2021 Jurisdiction: Care and protection Before: Judge Johnstone Decision: Discretion exercised not to compel the father to give evidence in the proceedings. Catchwords: CHILD WELFARE - Care proceedings - Application of the Evidence Act in Care proceedings - compellability of spouses under General Law - compellability of spouses in care proceedings Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) (The "Care Act"), s 9, s 93, s 94, 108 Evidence Act 1995 (NSW), s 128 Cases Cited: Australian Crime Commission v Stoddart [2011] HCA 47 Category: Procedural rulings Parties: The Secretary The Mother The Father The Child Representation: Mr Anderson of counsel for the Secretary, instructed by Mr Geason, solicitor from the Crown Solicitor's Office Mr Braine of counsel, instructed by Ms Renshall, solicitor for the Child as his Independent Legal Representative Ms Goodsell of counsel for the Mother Mr Joyner, solicitor, for the Father File Number(s): 2020/00197010 Publication restriction: This decision has been anonymised. Pseudonyms have been used to protect the identity of the child and family in accordance with section 105 of the Care Act.

EX TEMPORE JUDGMENT - REVISED

HIS HONOUR: 1. The background to the proceedings can be shortly stated and they relate to the child Hassan Rasooli, born in 2017. He is now four years old and was removed from his parents against a background of his younger sibling dying in circumstances which the expert evidence suggests were non‑accidental in that the injuries from which he died were inflicted upon him by somebody. It should be noted, the evidence, so far, suggests that the only people in the available pool of perpetrators that might have been responsible for the death of the child are the mother and the father. 2. The father has been charged with murder. He has pleaded not guilty and his matter has yet to come to trial, but at the moment he is bail refused. The mother's evidence so far is that she was not involved in any way and, after going out for a short period, on the relevant day on which the baby died, or on the relevant day on which the baby received the injuries which subsequently led to the death of that baby, returned home. There is conflicting evidence from her about where she went or where she was going. 3. In her evidence, she told the Court that she had intended to go to a clinic to have a blood test. But on the way there, realised she had forgotten her phone and then returned home to obtain her phone, only to find the child, the baby, in a state of distress, following which the ambulance was called. 4. I do not think I need to go into that factual background in any more detail on that today, but, the question then arises as to whether or not the older child, Hassan, can be restored to that mother, in those circumstances. 5. It is the Secretary's case that in the absence of a satisfactory explanation as to how the injuries to the baby occurred, there remains an unacceptable risk of harm to the older child from the mother. 6. The procedural history of the matter has some relevance in the sense that when the matter was first listed for hearing, the Magistrate who directed the case management insisted that the father be made available to give evidence and issued s 77 orders for his attendance at court. 7. And, at that stage, when the matter came on for hearing before me, it was, I recall, the position of all the parties, apart perhaps from the father, who was then represented by a different lawyer, that the father should give evidence, with a view to some elucidation of the circumstances in which the injuries were inflicted on the baby. That position has changed somewhat in the light of some evidence given in an affidavit of a case manager more recently, and, in the light of the fact that the father's legal representation has changed and he now instructs his new solicitor, firmly, that he does not wish to give evidence. 8. The position today is that the Secretary still seeks the Court to require the father to give evidence and to compel him to do so, albeit with the benefit of a certificate under s 128 of the Evidence Act, which would potentially have the effect of protecting him against self-incrimination, although as, it has been pointed out, if he were to give false evidence, that protection may be lost. The father, as I understand it, is opposed to being compelled. 9. The mother is now opposed to the father being compelled, for a variety of reasons, both substantive and discretionary, related principally to the potential prejudicial effect of any evidence from the father upon the mother and her position in the case. Counsel for the Independent Legal Representative has made a series of submissions, to the effect that the father is probably compellable, but that the Court, should in its discretion, not require him to give evidence. 10. The decision I have to make is to be made against a background of the applicability or otherwise of the Evidence Act. If sections of that Act do not apply, then the position under the general law as to compellability of a witness particularly a spouse, in care proceedings, applies. 11. I have had written submissions and oral submissions from all the parties on a number of these considerations, including the substantive issue as to whether as a matter of law, the father is competent, compellable and, secondly, whether or not, if he is, my discretion should be exercised in a way which requires him to give evidence, and perhaps, to give evidence with the protection of s 128 of the Evidence Act, to the extent that that may apply. 12. A starting point for me, it seems, is s 108 of the Care Act, which provides very clearly that criminal proceedings are irrelevant, in the sense that care proceedings should proceed notwithstanding the existence of criminal proceedings, it being in the best interests of the children concerned or the child concerned, to have the proceedings progress expeditiously to finality. The issue also, it seems to me, should be determined in the light of various other provisions of the Care Act relating to the conduct of care proceedings, including, for example, that provision that says the Evidence Act does not apply; those provisions that say that the proceedings should be conducted in a non- adversarial manner and with minimal regard to the formalities and technicalities of legal proceedings, as set out in s 93 for example; and, finally, the requirement under s 9 of the Care Act to apply the paramountcy principle, that is, that the safety, welfare and wellbeing of the child concerned is paramount in the determination of any issue in care proceedings. 13. Practice Note 5 has been adverted to, clause 24.3 of which enables the Court to require or allow a witness to give evidence, even though they have not filed an affidavit setting out their evidence. It seems that it is a procedural provision not related to compellability. 14. The first determination I make is whether or not to apply the Evidence Act. It has always been my view that the Evidence Act should not apply to care proceedings, except in very exceptional circumstances. I know there is some caselaw to the contrary, but it is my view that the whole purpose of the Care Act is to try and reach the truth, as far as possible, untrammelled by legal technicalities such as provisions in the Evidence Act. 15. The only provision of the Evidence Act that I would apply in this case, would be s 128, which would be to protect the father if he was required to give evidence, by the provision of a certificate, which would, to some extent, have the effect of enabling him to tell the Court what happened on the day in question, without him incriminating himself. 16. It therefore falls to a determination of whether the father is a competent and compellable witness under the general law. In my view, the general law, as set out in the case of Australian Crime Commission v Stoddart [2011] HCA 47, makes it clear that spousal privilege does not apply. 17. So, what that leaves me with is the general nature of the Children's Court and its power in care proceedings, and I am satisfied that in pursuance of the objectives of the Care Act and the principles set out in s 9, particularly the paramountcy principle, the Court is empowered to require a father in the circumstances in this case to give evidence and to be compelled to do so, even without a subpoena from any party. What then arises is, whether or not the Court should exercise a discretion not to require the father to give evidence, in the circumstances of this case. 18. In exercising that discretion, it seems to me there are a number of considerations which militate against compelling him to do so. Firstly, there are the matters articulated by the mother's counsel, Ms Goodsell, in her submissions, as to the potential prejudice that the father's evidence might wreak upon her, particularly in a procedural sense. Having regard to the way the proceedings have progressed so far, on the other hand, the father's evidence has the potential to be determinative of these proceedings. 19. I am also mindful of the submissions of the Independent Legal Representative as to the potential for these proceedings to be derailed, in effect, if the father were to be required to give evidence, such as the need for some sort of judicial review, perhaps before the proceedings are completed, and other considerations like that. 20. In the end, I believe there are two determinative factors in the exercise of my discretion. 21. Firstly, there is the mother's position. She potentially could benefit considerably from evidence by the father, if for example, the father were to get in the witness box and confess to the intentional infliction of the injuries that led to the baby's death, which might put the mother in a position of some strength, in that she was not involved in any way in the circumstances that gave rise to those injuries. On the other hand, there is also potential for the father, theoretically, to accuse the mother of being the perpetrator, which would of course, put a totally different complexion upon the proceedings and elevate the risk of a negative finding as to any realistic possibility of restoration to that mother. 22. The other possibility of course is the father, even with the benefit of a s 128 certificate, might refuse and nevertheless, continue to refuse to give evidence, which would give rise to the procedural possibilities of the case being derailed, as has been outlined in submissions, including the need for a judicial review, contempt proceedings and other such matters. 23. So, the second consideration, which I believe is determinative, is that which is set out in s 9(2)(e) of the Care Act and s 94 of the Care Act, which require this Court, to proceed to finalise care proceedings, as expeditiously as possible, and that the younger the child in question, the more that expedition is required, with a view to minimising the effect of proceedings and drawn out proceedings on the child in question. Unfortunately, because of Covid considerations, there has already been considerable delay in the determination of these proceedings, which is unfortunate but has been unavoidable. 24. For all those reasons, I propose to exercise a discretion not to compel the father to give evidence in these proceedings.

Amendments 21 April 2022 - 21/04/22 – "s 70 orders" changed to "s 77 orders" in paragraph [6] 21/04/22 – "caseworker" changed to "case manager" in line 2 of paragraph [7] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 April 2022