AGN (a pseudonym) v Secretary to the Department of Families, Fairness and Housing (Redacted)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 00170

AGN (a pseudonym)	Appellant
v
SECRETARY TO THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING	First Respondent
and
ZYF (a pseudonym)	Second Respondent
and
PXW (a pseudonym)	Third Respondent

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	27–28 March 2024
DATE OF JUDGMENT:	12 April 2024
CASE MAY BE CITED AS:	AGN (a pseudonym) v Secretary to the Department of Families, Fairness and Housing (Redacted)
MEDIUM NEUTRAL CITATION:	[2024] VSC 176
* This is a redacted version of the judgment that was published to the parties. The redactions have been made to remove particulars likely to lead to the identification of the parties.

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APPEAL — Children’s Court of Victoria — Interim accommodation order — Nature of appeal — Court’s powers on appeal — Whether appellant was denied procedural fairness — Whether different interim accommodation order should have been made — Interim accommodation order set aside — Whether unacceptable risk of harm to child — Children, Youth and Families Act 2005 (Vic), ss 10, 262, 263, 271.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the First Respondent	Ms J Davidson	Child Protection Litigation Office, Department of Families, Fairness and Housing
For the Second Respondent	Mr E Myles	Victoria Legal Aid
For the Third Respondent	No appearance

TABLE OF CONTENTS

Background.......................................................................................................................................... 1
CYF Act — relevant provisions......................................................................................................... 4
21 December 2023 hearing and interim accommodation order................................................... 9
8 January 2024 hearing and interim accommodation order....................................................... 12
Section 271 appeal against an interim accommodation order.................................................... 14
Grounds of appeal............................................................................................................................. 18
Did the magistrate deny AGN procedural fairness?................................................................... 20
Should a different interim accommodation order have been made?........................................ 25
What interim accommodation order should be made?............................................................... 28
Placement............................................................................................................................ 31
Child Protection’s submissions.......................................................................... 32
ZYF’s submissions................................................................................................ 33
AGN’s submissions.............................................................................................. 34
Consideration........................................................................................................ 35

Conditions.......................................................................................................................... 38

Disposition......................................................................................................................................... 39

HER HONOUR:

Background

This proceeding is an appeal under s 271 of the Children, Youth and Families Act 2005 (Vic) (CYF Act) from an interim accommodation order made by the Children’s Court of Victoria on 8 January 2024. The order was made on the application of the Secretary to the Department of Families, Fairness and Housing (Child Protection) in relation to a 12 year old child, who I will refer to as ZYF. The appellant is ZYF’s father, AGN.[1]
[1]Section 534 of the CYF Act restricts publication of a report of a proceeding that contains particulars likely to lead to the identification of a child or other party to a proceeding in the Children’s Court. Accordingly, I use pseudonyms to refer to ZYF, their parents, their siblings, and their carers, and have avoided reference to other particulars that may identify them.

[Redacted]

ZYF was born in Country A [redacted]. PXW [ZYF’s mother] lives in Country A and has had no contact with ZYF since 2020. While PXW was joined as the third respondent, and was properly served, she has taken no part in the proceeding.

AGN returned with ZYF to Melbourne, where he raised ZYF as a single parent. The family’s living arrangements during ZYF’s early years were unsettled, and several reports were received by Child Protection about ZYF between 2011 and 2015. AGN did not welcome the involvement of Child Protection, and often presented as suspicious and uncooperative. A protection application was commenced in December 2012, but withdrawn in February 2013; otherwise Child Protection found no cause to intervene. ZYF was examined by a paediatrician in February 2013, who reported them to be a healthy toddler.

For about three years AGN and ZYF lived in Country B [redacted]. After returning to Melbourne in 2018, AGN struggled to find stable housing. Four reports were received by Child Protection in 2018 and 2019 concerning the family’s insecure living arrangements; each report was closed at intake. In 2019, AGN was able to obtain public housing in Suburb 1, which he retains today.

AGN’s two younger children [redacted] were born [redacted] in Country B [redacted]. In mid-2022, AGN travelled to Country B to bring [ZYF’s siblings] back to Australia, leaving ZYF in the care of a male friend for more than four months. During AGN’s absence, two further reports were received by Child Protection in relation to ZYF. The first report was closed at intake.

In November 2022, while the second report was being investigated, AGN re-entered Australia with [ZYF’s siblings] and was stopped by Australian Border Force. Border Force apparently held ‘concerns’ about child exploitation and human trafficking, and seized multiple devices from AGN’s luggage.[2] Border Force retained the devices for examination, but identified nothing of concern on any of them.[3]
[2]Two mobile phones, two laptop computers, and five storage devices.
[3]Border Force released the devices for collection in March 2023. AGN did not collect them, and Border Force ultimately disposed of them in August 2023.

By December 2022, the Australian Federal Police Joint Anti Child Exploitation Team had advised Border Force of its assessment that there were no concerns that the children were being trafficked. In January 2023, the Victoria Police Sexual Offences and Child Abuse Investigation Team (SOCIT) advised that while there was some ‘inappropriate’ material on AGN’s phone, there was ‘nothing illegal’.

During this period, Child Protection received reports from several sources raising concerns about the welfare of all three children. These concerns included that AGN was neglecting ZYF, keeping them home from school to care for [ZYF’s siblings], and frightening ZYF by saying that the police were coming to get them. AGN’s behaviour was described as erratic, paranoid, and evasive. Child Protection interviewed ZYF at school in December 2022. ZYF made no disclosures of being harmed in their father’s care, but appeared guarded and apprehensive.

During January 2023, Child Protection tried to arrange a visit with AGN and the three children. AGN was reluctant to engage with Child Protection, which was not reassured by his defensive behaviour during an office visit in late January and a home visit in early February. Shortly after that home visit, AGN abruptly left Australia with [ZYF’s siblings], leaving ZYF in the care of AGN’s father (PGF).

AGN and [ZYF’s siblings] remained overseas for the rest of 2023. In August 2023, AGN was arrested by police in Country C in Europe for child cruelty and child neglect, following reports that [ZYF’s siblings] were hungry, dirty, and inadequately clothed. [ZYF’s siblings] were removed from AGN’s care and placed in foster care. In October 2023, a court in Country C suspended direct contact between AGN and [ZYF’s siblings], based on their apparent fear and distress during visits with him. [ZYF’s siblings] were returned to Australia in late January 2024, and AGN returned at about the same time. Child Protection commenced separate Children’s Court proceedings in relation to [ZYF’s siblings], and interim accommodation orders have been in place since 5 February 2024. [ZYF’s siblings] are now in out of home care in Melbourne, and have resumed supervised contact with AGN. A Children’s Court Clinic assessment is scheduled to take place in May 2024, and an interim contest hearing is listed for 29 May 2024.

In November 2023, Child Protection received a report about PGF’s care of ZYF. The report stated that the relationship between PGF and ZYF had deteriorated, that he was being emotionally abusive, that they were barricading themselves in their bedroom and hoarding food there, and that PGF did not want to care for ZYF after December 2023. After speaking separately with ZYF and PGF, Child Protection formed the view that ZYF could not continue to live with PGF and was in need of care and protection. The rationale for that assessment was:[4]

Father is not currently in the country and the arranged caregiver, [PGF], cannot care for [ZYF] ongoing. Thus leaving [ZYF] with no effective caregiver.
[ZYF] requires an ongoing caregiver to ensure [their] wellbeing, and therefore is at risk of physical harm should this not be in place. Furthermore, this creates an impact on [their] emotional wellbeing and sense of consistency and identity.
There is a likelihood of exposure to sexual harm given the material found by … AFP last year. Further comments were made by the father to Child Protection in [Country C] recently of an inappropriate nature – ‘I can’t believe you think I fuck my children’.

[4]Case note dated 20 December 2023, exhibited to the affidavit of Tracey O’Connor dated 27 March 2024, 334.

The protection application was filed with the Children’s Court on 21 December 2023.

CYF Act — relevant provisions

The CYF Act was enacted in 2005 for purposes that include providing for the protection of children, and continuing the Children’s Court as a specialist court relating to children.[5] Part 1.2 of the CYF Act sets out principles that are intended to give guidance in the administration of the CYF Act, which both the Children’s Court and Child Protection must consider in making decisions and taking action under the Act.
[5]CYF Act, s 1(b), (d).

Relevant here are the best interests principles, which are set out in s 10:

Best interests principles
(1) For the purposes of this Act the best interests of the child must always be paramount.
(2) When determining whether a decision or action is in the best interests of the child, the need to protect the child from harm, to protect his or her rights and to promote his or her development (taking into account his or her age and stage of development) must always be considered.
(3) In addition to subsections (1) and (2), in determining what decision to make or action to take in the best interests of the child, consideration must be given to the following, where they are relevant to the decision or action—
(a) the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society and to ensure that intervention into that relationship is limited to that necessary to secure the safety and wellbeing of the child;
(b) the need to strengthen, preserve and promote positive relationships between the child and the child's parent, family members and persons significant to the child;
(c) the need, in relation to an Aboriginal child, to protect and promote his or her Aboriginal cultural and spiritual identity and development by, wherever possible, maintaining and building their connections to their Aboriginal family and community;
(d) the child’s views and wishes, if they can be reasonably ascertained, and they should be given such weight as is appropriate in the circumstances;
(e) the effects of cumulative patterns of harm on a child’s safety and development;
(f) the desirability of continuity and permanency in the child’s care;
(fa) the desirability of making decisions as expeditiously as possible and the possible harmful effect of delay in making a decision or taking an action;
(g) that a child is only to be removed from the care of his or her parent if there is an unacceptable risk of harm to the child;
(h) if the child is to be removed from the care of his or her parent, that consideration is to be given first to the child being placed with an appropriate family member or other appropriate person significant to the child, before any other placement option is considered;
(i) the desirability, when a child is removed from the care of his or her parent, to plan the reunification of the child with his or her parent;
(j) the capacity of each parent or other adult relative or potential care giver to provide for the child’s needs and any action taken by the parent to give effect to the goals set out in the case plan relating to the child;
(k) contact arrangements between the child and the child’s parents, siblings, family members and other persons significant to the child;
(l) the child’s social, individual and cultural identity and religious faith (if any) and the child’s age, maturity, sex and sexual identity;
(m) where a child with a particular cultural identity is placed in out of home care with a care giver who is not a member of that cultural community, the desirability of the child retaining a connection with their culture;
(n) the desirability of the child being supported to gain access to appropriate educational services, health services and accommodation and to participate in appropriate social opportunities;
(o) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance;
* * * * *
(q) the desirability of siblings being placed together when they are placed in out of home care;
(r) any other relevant consideration.

Chapter 4 of the CYF Act concerns children in need of protection. Section 162 provides:

When is a child in need of protection?
(1) For the purposes of this Act a child is in need of protection if any of the following grounds exist—
(a) the child has been abandoned by his or her parents and after reasonable inquiries—
(i) the parents cannot be found; and
(ii) no other suitable person can be found who is willing and able to care for the child;

(b) the child’s parents are dead or incapacitated and there is no other suitable person willing and able to care for the child;
(c) the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type;
(d) the child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type;
(e) the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child’s emotional or intellectual development is, or is likely to be, significantly damaged and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type;
(f) the child’s physical development or health has been, or is likely to be, significantly harmed and the child’s parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care.

(2) For the purposes of subsections (1)(c) to (1)(f), the harm may be constituted by a single act, omission or circumstance or accumulate through a series of acts, omissions or circumstances.
(3) For the purposes of subsection (1)(c), (d), (e) and (f)—
(a) the Court may find that a future state of affairs is likely even if the Court is not satisfied that the future state of affairs is more likely than not to happen;
(b) the Court may find that a future state of affairs is unlikely even if the Court is not satisfied that the future state of affairs is more unlikely than not to happen.

Under Pt 4.8, Div 2 of the CYF Act, a protective intervener who is satisfied on reasonable grounds that a child is in need of protection may make a protection application in respect of the child to the Children’s Court.[6] An application of this kind is heard in the Family Division of the Children’s Court.
[6]CYF Act, ss 240, 243.

If a protection application is filed, s 262(1)(b) enables the Children’s Court to make an interim accommodation order in respect of the child. Section 263 sets out the conditions that may be included in an interim accommodation order, relevantly:

Conditions of interim accommodation order
(1) An interim accommodation order may provide for—
(a) the release of the child pending the hearing, or the resumption of the hearing; or
(b) the release of the child into the care of his or her parent pending the hearing, or the resumption of the hearing; or
(c) the placement of the child with a suitable person or suitable persons pending that hearing, or the resumption of the hearing, and following a report (whether oral or written) from the Secretary on that person’s or those persons’ suitability; or
(d) the placement of the child in an out of home care service pending that hearing or resumption; or
…

…
(7) An interim accommodation order may include any conditions that the Court or bail justice considers should be included in the best interests of the child.
(8) Conditions included in an interim accommodation order may relate to the contact with a parent or other person by the child.
…

An interim accommodation order that provides for the release of a child into the care of their parent, a suitable person, or an out of home care service remains in force for the period specified in the order,[7] and may be extended from time to time if the Children’s Court is satisfied that it is in the best interests of the child to do so.[8] A parent is entitled to be given details of the child’s whereabouts under the interim accommodation order, unless the Children’s Court directs that those details be withheld from the parent in the best interests of the child.[9]
[7]CYF Act, s 264(1).
[8]CYF Act, s 267(2)(a).
[9]CYF Act, s 265.

If the Children’s Court has made an interim accommodation order, s 268 provides that the child or a parent of the child may apply for variation of the conditions included in the order if the applicant was not legally represented at the hearing of the application for the order, or if new facts or circumstances have arisen since the making of the order.[10] A protective intervener may apply to vary an interim accommodation order only where new facts or circumstances have arisen.[11]
[10]CYF Act, s 268(1).
[11]CYF Act, s 268(2).

Section 270 provides for applications for a new interim accommodation order in certain circumstances. If an interim accommodation order is already in force in respect of a child, the child or a parent of the child may apply to the Court for a new interim accommodation order if the applicant was not legally represented at the hearing of the application for the order, or if new facts or circumstances have arisen since the making of the order.[12] A protective intervener may apply for a new interim accommodation order if new facts or circumstances have arisen since the making of the interim accommodation order, whether or not the order is still in force.[13]
[12]CYF Act, s 270(1).
[13]CYF Act, s 270(2).

21 December 2023 hearing and interim accommodation order

Child Protection filed a protection application in relation to ZYF on 21 December 2023, relying on the grounds in s 162(1)(a), (c), (d), and (e) of the CYF Act — namely, abandonment and the likelihood of significant harm as a result of physical injury, sexual abuse, and emotional or psychological harm. A Summary Information Form (referred to as a Form B) was filed in support of an application for an interim accommodation order to a suitable person. The Form B contained a summary of ZYF’s child protection history, listing the 12 previous reports made to Child Protection regarding ZYF. [Redacted]

The application was heard by the Children’s Court on 21 December 2023, apparently by audio-visual link. Child Protection and ZYF were legally represented. AGN was on notice of the application and appeared on his own behalf by connecting to the hearing by telephone from Country C. At the start of the hearing the magistrate asked if AGN could turn on his camera. He responded ‘I called in, so I don’t think that I can’. The magistrate proceeded to conduct the hearing with AGN participating by telephone.

Child Protection sought an interim accommodation order to a suitable person, who I will refer to as Carer 1.

ZYF’s solicitor conveyed the instructions she had received:[14]

I spoke with [ZYF] on the phone. [They present] as an intelligent and articulate young person. [ZYF] instructs, Your Honour, that [they wish] to stay with [Carer 1] until [their] father returns. [ZYF] also instructs, Your Honour, that [they] didn’t believe that there needed to be an order that forced [them] to live with [Carer 1], as [they] would willingly live with [Carer 1]. I also had a discussion with [ZYF] about [their] views about contact with [their] father. The Department are proposing that any contact that [ZYF] has with [their] father be supervised. [ZYF] does not agree with that, and … says [they] would feel uncomfortable if somebody listened in or was present during conversations with [their] father, and [they don’t] have any worries about [their] father.

[14]Transcript of Proceedings dated 21 December 2023, Broadmeadows Children’s Court, 3:15, exhibited to the affidavit of Tracey O’Connor dated 20 February 2024.

In response to a question from the magistrate, AGN said that he was fine with ZYF staying with either Carer 1 or a family member who I will refer to as Carer 2. He queried the need for an order, given his agreement, and argued that there were no grounds to make an order. The magistrate then asked AGN some questions about [ZYF’s siblings’] situation in Country C and whether he intended to return to Australia. AGN’s responses were argumentative and not entirely coherent. However, it is clear from what he said that he disputed that there was any factual basis for the ‘concerns of child sexual exploitation’ reported in the Form B, and sought to email documentation to prove his position. The magistrate said that she had to take Child Protection’s case at its highest, and refused to accept any documentation by email. AGN then addressed some of the other concerns raised in the Form B, until the magistrate cut him off, saying:

Any parent that goes overseas and leaves a child or children with an unsatisfactory carer, whether or not that’s intentional or not, those children do require an order because they’re in need of care and protection. It’s as simple as that, [AGN]. You can come back to Australia and present the evidence that you’ve got at a time when you do come back to Australia, but to sit here and go through this document, paragraph by paragraph, when it’s clear that [ZYF at] the moment is without a carer and needs somebody to go to, and there’s agreement that [they go] to [Carer 1], I can’t see the point in continuing to go through this document.

The magistrate indicated that she would take into account ZYF’s wishes and make an order that ZYF reside with Carer 1. After hearing some further argument, the magistrate gave the following reasons for the order:[15]

The reason why I am making this order is I have a document called a form B, which is a seven page document which outlines why, the Department are seeking the order today. The father disputes most of that document and says that it’s manufactured and made up. And there’s not one positive thing in the document. I accept that there’s not one positive thing in the document. But that’s historically the case with form B’s. They only rely on the negative aspects because that’s the matters that bring the matter to court. There are a whole lot of allegations in that document, but the fact remains that this is a 12 year old [child]. And the father, left Australia in February 2023 and left [ZYF] with the paternal grandfather. And it would appear, and I’m not saying that the father knew that it was inappropriate, but it’s clearly an inappropriate placement for [ZYF]. [They say they feel] uncomfortable. [They’ve] barricaded [themselves] in [their] bedroom. [They say their] only happy and safe places at school and said that [they] didn’t want to live with [their] grandfather. [Redacted]. [They] also said that [their] grandfather doesn’t let [them] out of the house for more than an hour.
Now, [AGN], the father, has agreed that this is not an acceptable placement. As I said, I don’t know whether he knew that when he left, but it’s clearly not, an acceptable placement. [ZYF] is distressed and therefore I’m satisfied that [they are] in need of care and protection. On the basis of that placement. Therefore, I need to make an interim accommodation order. And [they have] expressed that [they] would like to go to live with [Carer 1] … And I think that’s appropriate. Despite that, there are there are many allegations contained in this form B against [AGN] which the Department allege, I have to take the form B at its highest. But for today’s proceedings, I’m going to make the interim accommodation on the basis of, [ZYF] being unsafe with [their] grandfather and in need of care and protection in relation to all the other allegations. They may be true, or they may be manufactured. I suspect they probably are true, but I’m not going to make that finding today. That will be a matter for another day, and perhaps the court will need to hear some evidence about that.

[15]Transcript of Proceedings, 21 December 2023, Broadmeadows Children’s Court, 13:5–35, exhibited to the affidavit of Tracey O’Connor dated 20 February 2024.

The magistrate then outlined the conditions of the interim accommodation order, including that AGN could not have contact with ZYF other than court ordered contact, that contact would take place at times and places as agreed with Child Protection, and would be supervised by Child Protection. AGN said that he had not been allowed to make submissions about those points, and the magistrate said that he would be able to do that when he returned to Australia. He indicated that he planned to return before the end of the month, and said again that he wished to make submissions about the conditions of the order. The magistrate said:[16]

Well, if you were here, I’d say yes. But given that you’re not here and I haven’t got any evidence from you except what you say, I’m going to book the matter in for reserve submissions on the 8th of January, and you can come in person and make those submissions. But for the time being, the orders that I’ve made stand. Thank you very much.

[16]Transcript of Proceedings, 21 December 2023, Broadmeadows Children’s Court, 15:45–16:5, exhibited to the affidavit of Tracey O’Connor dated 20 February 2024.

The interim accommodation order made on 21 December 2023 was in the following terms:

Until further order, I order that the child is to be:
placed with Undisclosed Placement, who is a/are suitable person(s) pending that hearing, or the resumption of, the hearing, and following a report (whether oral or written) from the Secretary on that person’s or those persons’ suitability.
The following conditions apply to this Order:
1. Father must accept visits from and cooperate with DFFH.
2. The child may have respite as agreed between the DFFH and the Child.
3. Father must not live or have contact with the child other than court ordered contact.
4. Father must allow the child to be taken to the doctor for regular check-ups as required by DFFH or the doctor and must allow reports to be given to DFFH.
5. Father may have contact with the child for a minimum of 3 at times and places as agreed between **Other**. DFFH or its nominee will supervise contact unless DFFH assesses that supervision is not necessary.
6. Father must notify DFFH when he is returning to Australia. Father must allow the child to engage in a holiday program.

8 January 2024 hearing and interim accommodation order

On 8 January 2024, Child Protection applied for a new interim accommodation order, to an alternative carer, on the basis that the placement with Carer 1 could not continue. The following additional information was included in the Form B filed in support of the application: [Redacted]

In preparation for the hearing on 8 January 2024, Child Protection had filed the application for a new interim accommodation order and the revised Form B on the Children’s Court’s CMS Portal. It also uploaded more than 1,000 pages of ‘CRIS notes’ concerning ZYF — essentially its entire file in relation to ZYF, extending back to February 2012. The CRIS notes were redacted in order to protect the identity of the persons who had made reports regarding ZYF.[17] The documents filed on the CMS Portal, including the CRIS notes, were available to the Children’s Court but were not made available to AGN.
[17]Consistent with CYF Act, s 41.

The hearing on 8 January 2024 took place by audio-visual link, before the same magistrate who had made the interim accommodation order on 21 December 2023. AGN was still overseas on 8 January 2024, and connected to the hearing by telephone. After taking the appearances for Child Protection and ZYF, the magistrate said:[18]

Now, I understand the father is yet again on the phone from [Country C]. He hasn’t come back to Australia. I asked my registrar to ask him whether or not he would turn on his - this is a video link, it’s unfortunate that we’re not in person, but I’m not going to have another conversation with [AGN] over the phone. He’s not here. I can’t make an order to place [ZYF] in his care …, and therefore I’m not going to hear from him today unless he’s prepared to use his data and show me his face. He’s entitled to listen to what’s being said, but I’m not going to allow him to address me, for the reasons that I’ve just given.

[18]Transcript of Proceedings, 8 January 2024, Broadmeadows Children’s Court, 2:15–25, exhibited to the affidavit of Tracey O’Connor dated 20 February 2024.

The magistrate heard submissions from counsel for Child Protection about the imminent repatriation of [ZYF’s siblings] to Australia, the proposed alternative placement for ZYF, and some additional conditions sought by Child Protection. ZYF’s solicitor conveyed ZYF’s instructions that they were happy to be placed with Carer 2, did not wish to commence counselling, and did not believe that their contact with AGN had to be monitored or supervised.

In the course of the hearing, the magistrate indicated that she had read ‘a number of the CRIS notes’. Counsel for Child Protection also referred to the CRIS notes in making her submissions.

Towards the end of the hearing, the magistrate said:

Well as I said, I’m not going to ask the father whether he’s coming back because he told me he was coming back for today’s hearing, but obviously because he was unsuccessful in regaining custody of [ZYF’s siblings] he’s not here. I don't know what he intends to do, and if he were prepared to put his screen on, I would hear from him, but I’m not. If he would like to telephone the Department and tell them when he’s coming back, that would certainly help [ZYF]. But apart from that, I can’t really do anything further.

The new interim accommodation order made on 8 January 2024 was in the following terms:

Until further order, I order that the child is to be:
placed with Undisclosed Placement, who is a/are suitable person(s) pending that hearing, or the resumption of, the hearing, and following a report (whether oral or written) from the Secretary on that person’s or those persons’ suitability.
The following conditions apply to this Order:
1. Father must accept visits from and cooperate with DFFH.
2. Father must accept support services as agreed with DFFH.
3. Father must not live or have contact with the child other than court ordered contact.
4. Father must allow the child to be taken to the doctor for regular check-ups as required by DFFH or the doctor and must allow reports to be given to DFFH.
5. Father may have contact with the child for a minimum of 3 times per week at times and places as agreed between Father and DFFH. DFFH or its nominee will supervise contact unless DFFH assesses that supervision is not necessary.
6. Father must notify DFFH when he is returning to Australia.
7. Father must allow the child to engage in a holiday program
8. Father must submit to a paternity test.
9. The Young Person is allowed to attend counselling, subject to [their] wishes.
10. Child may have respite as agreed between the child and DFFH

Conditions 2, 8, and 9 were new conditions that had not been included in the first interim accommodation order.

The interim accommodation order made on 8 January 2024 was extended on 16 March 2024 and 20 March 2024. On 20 March 2024 the magistrate noted on the order that Child Protection would consider the viability of a joint placement for all three children, and that consideration would be given at the next hearing to whether ZYF’s protection application should be listed for interim contest on 29 May 2024, together with the pre-existing listing for [ZYF’s siblings].

Section 271 appeal against an interim accommodation order

Section 271 of the CYF Act provides:

Appeal against interim accommodation order
(1) If the Court makes an interim accommodation order in respect of a child or dismisses an application for an interim accommodation order in respect of a child, then—
(a) the child; or
(b) a parent of the child; or
(c) a protective intervener—

may appeal to the Supreme Court against the order or the dismissal.
(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.

(3) On an appeal under this section against the dismissal of an application for an interim accommodation order, the Supreme Court must—
(a) if it thinks that the application should not have been dismissed, make the order that it thinks ought to have been made; or
(b) in any other case, dismiss the appeal.

The right of appeal from an interim accommodation order under s 271 of the CYF Act is anomalous in at least three ways.[19]
[19]The same anomalies exist in relation to the right of appeal from a temporary assessment order under s 239 of the CYF Act.

First, the right to appeal to the Supreme Court from an interim accommodation order is broader than the right to appeal on a question of law from a final order of the Family Division of the Children’s Court under s 329 of the CYF Act. There is no obvious reason why this should be so. An interim accommodation order is often made on an urgent basis, in rapidly changing circumstances, and with relevant evidence still being gathered. Where new facts or circumstances have arisen since the making of the order, the CYF Act enables a protective intervener, a child, or a parent of the child to apply to vary the conditions of the interim accommodation order, or to apply for a new order.[20] In that situation, it is clearly more sensible to have the Children’s Court reconsider an interim accommodation order than to escalate it to the Supreme Court.[21]
[20]CYF Act, ss 268, 270, referred to at [20]–[21] above.
[21]KDN v The Secretary to the Department of Families, Fairness and Housing [2023] VSC 479, [19] (KDN).

Second, the CYF Act was enacted with a purpose of continuing the Children’s Court as a specialist court relating to children. The Supreme Court is not a specialist court relating to children. As the superior court of Victoria, it has a general supervisory jurisdiction, which the High Court has described as ‘the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power’.[22] The Supreme Court’s judicial review jurisdiction is complemented by statutory rights of appeal on a question of law from lower courts and tribunals.[23] In exercising its judicial review jurisdiction and in determining an appeal on a question of law, the Supreme Court is concerned with the lawfulness of the decision under review or appeal, as distinct from its merits. However, on an appeal under s 271 the Supreme Court must undertake its own assessment of the merits of the decision made by the specialist Children’s Court.
[22]Kirk v Industrial Court (NSW) (2010) 239 CLR 531, [98] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[23]Magistrates’ Court Act 1989 (Vic), s 109; Criminal Procedure Act 2009 (Vic), s 272; CYF Act, s 329; Coroners Act 2008 (Vic), s 87; Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148.

Third, and relatedly, s 271 of the CYF Act does not enable the Supreme Court to remit a proceeding for reconsideration by the Children’s Court. Where error is established, s 271(2) requires the Supreme Court to determine if a different interim accommodation order should have been made and, if so, to set aside the order of the Children’s Court and make any other order that it thinks ought to have been made. This is despite the fact that the Children’s Court is more likely to be familiar with the issues for determination in the underlying application pending before the Children’s Court.[24]
[24]KDN, [19].

That said, the authorities provide guidance as to the exercise of the Supreme Court’s jurisdiction to hear an appeal against an interim accommodation order under s 271. Critically, it is an appeal by way of rehearing, as distinct from an appeal de novo.[25] This means that an appeal under s 271 is to be determined based primarily on the evidence and other material that was before the Children’s Court, and will only succeed if the appellant establishes legal, factual or discretionary error on the part of the Children’s Court.
[25]KDN, [18].

In some circumstances, this Court may also receive additional or ‘fresh’ evidence that was not before the Children’s Court. This evidence falls into two broad categories. The first is evidence that might have been but was not put before the Children’s Court. Considerations of justice and public interest indicate that this kind of evidence should be admitted only in an exceptional case, where it could not reasonably have been relied on at the hearing before the Children’s Court.[26] The second category is evidence of events that have occurred since the making of the interim accommodation order under appeal. Generally, evidence of this kind should only be admitted where not doing so ‘would affront common sense’.[27] The paramount consideration in all cases is the best interests of the child concerned.[28]
[26]KDN, [36]–[37], citing Clark v Stingel [2007] VSCA 292, [25].
[27]KDN, [41], citing Mobilio v Balliotis [1998] 3 VR 833, 852 (Brooking JA), which in turn cites Mulholland v Mitchell [1971] A.C. 666, 679–80 (Lord Wilberforce).
[28]KDN, [38]; CYF Act, s 10(1).

Whether or not the Court receives additional evidence, it will usually not be necessary or appropriate for it to make findings of fact about past events of alleged harm.[29] The central considerations for the Court are the best interests of the child and, where the Court is considering removing the child from the care of a parent, whether there is an unacceptable risk of harm to the child.[30] In making that assessment, the Court must weigh the available evidence concerning the conduct in question, consider the likelihood of it occurring in future, consider the nature and extent of harm to the child were the conduct to recur, and determine whether the risk of that harm is unacceptable.[31]
[29]Secretary to the Department of Human Services v Children’s Court of Victoria [2014] VSC 609, [24] (Secretary 2014).
[30]Secretary 2014, [24]; CYF Act, s 10(1), (3)(g).
[31]Secretary 2014, [24]; MMM v Secretary to the Department of Families, Fairness and Housing [2023] VSC 354, [17].

The evidence on which an interim accommodation order is made will often comprise no more than factual assertions set out in the Form B and made by way of submission during the Children’s Court hearing. In some cases, as occurred here, Child Protection will also produce its case notes in relation to the child, which are necessarily hearsay, and often unattributed hearsay. These notes commonly record ‘concerns’ that are held by Child Protection workers or others, without clearly identifying the factual basis for the concerns. In those circumstances, it can be a difficult task for the Court to determine whether leaving a child in the care of a parent presents an unacceptable risk of harm to the child.

In order to make that determination, the Court must analyse what weight should be given to factual allegations made by Child Protection, and any denials or counter-allegations. The Court cannot disregard factual allegations that appear to be rational, but equally it is not obliged to give weight to mere assertions or ‘concerns’ that have no apparent basis in fact. The best interests of the child concerned will usually require the Court to take a cautious approach when assessing the risk of harm.[32]
[32]Secretary to the Department of Health and Human Services v Children’s Court of Victoria (2018) 58 VR 490, [16]–[17]; Weiren v Secretary to the Department of Families, Fairness and Housing [2023] VSC 553, [45]–[47].

Grounds of appeal

AGN filed an amended notice of appeal dated 12 March 2024, in which he contended that the magistrate erred in making the interim accommodation order, including the ancillary conditions, on the following grounds.

First, AGN said that the magistrate erred in refusing AGN to produce evidence during the hearings on 21 December 2023 and 8 January 2024, which denied him procedural fairness. The evidence he would have produced included ZYF’s school reports from recent years, which he said described ZYF as a conscientious, well adjusted, psychologically healthy, pro-social and well-liked child who performed well at school and was thriving socially.

Second, AGN said that the magistrate’s refusal to allow him to speak or to make submissions during the hearing on 8 January 2024 denied him procedural fairness. AGN complained that he had been placed on mute during the 8 January hearing, although he had chosen the dial-in method of attending the hearing provided in the attendance instructions emailed to him by the Children’s Court. He said that he had limited bandwidth and limited mobile data and could not use video.

Third, AGN contended that the magistrate made no finding that ZYF had suffered or was likely to suffer significant harm or had been abandoned. Instead, the sole reason for making the interim accommodation order was that AGN was overseas.

Fourth, AGN said that the magistrate had erred by not considering the less draconian option that ZYF could stay voluntarily with Carer 2, without the need for a court order.

Fifth, AGN argued that the magistrate had wrongly accepted unidentified hearsay evidence without requiring the evidence to be produced so that AGN could refute the allegations, and without making any order as to discovery. He complained that the Form B consisted of unidentified hearsay and allegations so general as to be unanswerable. AGN made a detailed argument in support of this ground. He was particularly exercised by the allegations that gave rise to the concerns held by Child Protection about child sexual exploitation, saying that ‘the judiciary should not permit the accusation of paedophilia based on any fact, or set of facts, at all that has no connection whatsoever with abuse of underage persons’.

Sixth, AGN said that the magistrate had been verbally hostile towards him during the hearings, and had prevented him from producing evidence and speaking during the hearing on 8 January 2024, which gave rise to a reasonable apprehension of bias against AGN.

Seventh, AGN contended that the evidence presented by Child Protection to the magistrate was false information, and that all information favourable to him had been deliberately suppressed. In those circumstances, he argued, it was impossible for him to have a procedurally fair hearing.

AGN sought orders that the interim accommodation order, together with all its ancillary conditions, be set aside.

Did the magistrate deny AGN procedural fairness?

It is convenient to deal with AGN’s first and second grounds of appeal, relating to a claimed denial of procedural fairness. Put simply, his contention was that it was procedurally unfair for the magistrate not to hear from him at all on 8 January 2024.

Child Protection submitted that the hearing on 8 January 2024 had specifically been listed as an in person hearing on a date when AGN had assured the magistrate he would be back in Australia and could attend in person. It said that AGN was well aware that the hearing was to be in person, but decided not to return to Australia and appear in person, chose not to organise legal representation, and chose not to turn on his camera as requested. In those circumstances, Child Protection submitted that AGN was given a reasonable opportunity to be heard, but did not avail himself of that opportunity.

It transpired that the hearing on 8 January 2024 took place online, despite the magistrate’s indication at the end of the hearing on 21 December 2023 that the next hearing would be in person. After taking appearances for Child Protection and ZYF on 8 January, the magistrate referred to the fact that AGN was ‘yet again on the phone from [Country C]’, and said ‘this is a video link, it’s unfortunate that we’re not in person, but I’m not going to have another conversation with [AGN] over the phone’.

AGN had connected to the hearing by telephone, could hear what was being said, and could have made submissions in the course of the hearing. However, the magistrate said:

He’s not here. I can’t make an order to place [ZYF] in his care … and therefore I’m not going to hear from him today unless he’s prepared to use his data and show me his face. He’s entitled to listen to what’s being said, but I’m not going to allow him to address me, for the reasons that I’ve just given.

The transcript records nothing said by AGN in the course of the 8 January hearing, which is consistent with his evidence that he was placed on mute.

Child Protection submitted that the mode of hearing was in the control of the Children’s Court, and that a party could not dictate that a hearing should take place by telephone or video. While that submission may be accepted, it must be qualified by the rules of procedural fairness and the provisions of the CYF Act.

Procedural fairness is ‘an essential attribute of a court’s procedures’, and it is a fundamental obligation of every court to ensure a fair hearing for the parties before it.[33] The ‘concern of the law is to avoid practical injustice’.[34] An essential requirement of a fair hearing is that each party be given a reasonable opportunity to present their case, having been informed of the case to be advanced by the opposing party and having a reasonable chance to respond.[35] What is reasonable depends on the circumstances of the case, including the nature of the decision, the nature and complexity of the issues, what is at stake for the party concerned, and the competing demands on the time and resources of the court.[36]
[33]Condon v Pompano Pty Ltd (2013) 252 CLR 38, [156], cited in Roberts v Harkness (2018) 57 VR 334, [46] (Roberts v Harkness).
[34]Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parteLam (2003) 214 CLR 1, [37] (Gleeson CJ), quoted in Roberts v Harkness, [47].
[35]Roberts v Harkness, [48].
[36]Roberts v Harkness, [49].

A key consideration in determining the content of procedural fairness in a particular case is the relevant statutory framework.[37] The Children’s Court of Victoria is established under Chapter 7 of the CYF Act, with two distinct jurisdictions — the Family Division and the Criminal Division.[38] The protection application in relation to ZYF was made in the Family Division of the Children’s Court.
[37]Roberts v Harkness, [50].
[38]CYF Act, ss 515, 516.

Section 522 of the CYF Act sets out some broad procedural guidelines to be followed by the Children’s Court. These include, as far as practicable:

(a) taking steps to ensure that the proceeding is comprehensible to the child and the child’s parents;[39] and

(b) allowing the child and, in the case of a proceeding in the Family Division, the child’s parents, to participate fully in the proceeding.[40]

[39]CYF Act, s 522(1)(a).

[40]CYF Act, s 522(1)(c).

In addition, s 215 provides that the Family Division must conduct proceedings before it in an informal manner, without regard to legal forms, and may inform itself on a matter in such manner as it thinks fit.[41] Section 215B gives the Family Division specific powers to manage child protection proceedings, including powers to actively direct, control and manage proceedings and make appropriate use of technology.[42]
[41]CYF Act, s 215(1).
[42]CYF Act, s 215B(1)(d), (i).

The content of procedural fairness does not change significantly if a party is unrepresented.[43] However, because a self-represented litigant usually lacks both legal skill and objectivity, the court may have to provide them with some assistance in order to avoid practical injustice.[44] For example, it may be necessary to explain the relevant law and procedure, and to direct the litigant’s attention to the issues for decision.[45] In addition, the court will have to assess the party’s ability to argue their case, and may also have to clarify an arguable point that the party has not been able to articulate.[46]
[43]Roberts v Harkness, [53].
[44]Tomasevic v Travaglini (2007) 17 VR 100, [140] (Tomasevic).
[45]Tomasevic, [141]–[142]; see also CYF Act, s 522(1)(a).
[46]Roberts v Harkness, [54]–[56].

AGN did not receive a fair hearing on 8 January 2024. Far from being allowed to participate fully in the hearing, he was not allowed to participate at all. Although AGN clearly lacked objectivity and familiarity with Children’s Court practice and procedure, the transcript does not record that the magistrate gave any explanation of the matters to be determined at the hearing or the procedure that would be followed. Most significantly, AGN did not have a reasonable opportunity to present any case, because the magistrate had him placed on mute throughout the hearing.

While it may have been preferable for AGN to have appeared by video, it was not essential to his participation in the hearing. AGN had connected to the online hearing by the same method he had used to participate in the previous hearing, and he could readily have been heard by telephone. The magistrate did not explain to AGN why she considered it necessary to see his face during the hearing, or inquire whether it was possible for him to connect to the hearing by video. I accept AGN’s explanation that he did not have the bandwidth or the mobile data to support a video link. In those circumstances, refusing to hear from him by telephone was not a fair way to proceed.

The unfairness of the 8 January hearing was compounded by the fact that the magistrate had been provided with access to Child Protection’s case notes in relation to ZYF, and AGN had not. This fact only came to light in the course of the hearing before me, when I queried what was meant by the references to the ‘CRIS notes’ during the 8 January hearing. The picture that emerged was most concerning.

The Children’s Court Practice Direction No. 3 of 2023 provides that CRIS notes relevant to any application must be filed in the CMS portal in unredacted form and (where necessary) in redacted form. Redacted CRIS notes are available to CMS users, unless otherwise ordered. The CMS portal is only able to be used by legal practitioners, Child Protection, and authorised Aboriginal agencies. Self-represented parties do not have access to the CMS portal, and may file documents by email to the Children’s Court Registry, in person at the counter, or by mail.

CRIS notes can — and in this case did — contain a great deal of material adverse to a parent of a child. Procedural fairness requires that the parent be informed of that material and have a reasonable opportunity to respond to it.[47] The fact that self-represented parties do not currently have access to the CMS portal seems to me to create a real risk of procedural unfairness. It is unclear how a self-represented party such as AGN is given fair access to CRIS notes that are available to the Children’s Court and represented parties through the CMS portal, either before an in person hearing or where the hearing takes place online.
[47]Roberts v Harkness, [48].

Child Protection accepted that AGN was entitled to have the CRIS notes ahead of the 8 January hearing, and was not provided with them.

I am satisfied that AGN has established a legal error affecting the interim accommodation order made on 8 January 2024, in that the Children’s Court did not give him a fair hearing on that day. He was not given a reasonable opportunity to present his case, and was not fully informed of the case against him.

I can therefore deal more briefly with AGN’s remaining grounds of appeal.

The third ground of appeal was misconceived. The magistrate’s power to make an interim accommodation order under s 262 of the CYF Act was not conditioned on a finding that ZYF had suffered or was likely to suffer significant harm or that they had been abandoned. The power to make the interim accommodation order was enlivened once Child Protection filed the protection application with the Children’s Court.[48]
[48]CYF Act, s 262(1)(b).

The fourth ground was not made out. AGN did not demonstrate that the magistrate had not considered the less draconian option that ZYF could stay voluntarily with Carer 2, without the need for a court order. He put that submission at the first hearing, and it was rejected by the magistrate. The initial interim accommodation order was made for the reasons given by the magistrate on 21 December 2023, in which she found that ZYF had been left by AGN in a clearly inappropriate placement, and that ZYF was distressed and in need of care and protection.

The fifth and seventh grounds of appeal were based on the incorrect premise that the magistrate had made findings of fact, accepting Child Protection’s version of events without allowing AGN to test it or present contrary evidence. The hearings on 21 December 2023 and 8 January 2024 were both submissions contests, and no findings of fact were made. The magistrate proceeded on the basis that she had to ‘take the form B at its highest’, which I take to be shorthand for the approach to contested facts outlined at [46] to [48] above. There was no error in taking that approach on an application for an interim accommodation order. If the protection application proceeds to a final contested hearing, AGN will have an opportunity to test the evidence relied on by Child Protection and to present his own evidence.

The sixth ground of appeal was that the magistrate’s behaviour towards AGN during the hearing on 8 January gave rise to a reasonable apprehension of bias against him. In light of the findings I have made about the unfair way in which that hearing was conducted, I consider that a fair-minded lay observer might reasonably apprehend that the magistrate might not have brought an impartial mind to the resolution of the questions for decision on 8 January.[49] That apprehension might reasonably extend to future hearings involving AGN. I note that the Practice Note provides that cases in the Family Division of the Children’s Court will be managed by the same judicial officer wherever practicable, unless otherwise directed.[50] In this case, it may be prudent for the protection applications in relation to ZYF and [their siblings] to be reallocated to a different magistrate.
[49]Charisteas v Charisteas (2021) 273 CLR 289, [11].
[50]Practice Direction, [4].

Should a different interim accommodation order have been made?

Child Protection submitted that any failure to hear from AGN at the 8 January hearing, and the fact that he did not have the CRIS notes beforehand, did not materially affect the orders that were made on that day. It said that the fact remained that AGN was out of the country, the protective concerns about PGF required a different placement, and AGN had agreed at the 21 December 2023 hearing that ZYF could be placed with either Carer 1 or Carer 2. Given that ZYF could not remain with Carer 1, the magistrate had no option but to make a new interim accommodation order to Carer 2. Child Protection submitted that there was really only one order that could be made in ZYF’s best interests. The evidence that AGN said he wanted to produce, such as ZYF’s school reports, could have made no difference given that he remained overseas.

I accept that submission, so far as it relates to the placement of ZYF with Carer 2. AGN’s submission that no order should be made had been considered and rejected by the magistrate at the first hearing on 21 December 2023. As at 8 January 2024, AGN remained overseas with no clear return date, and there was no possibility that ZYF could be released into his care. ZYF wished to live with Carer 2, and AGN had indicated at the first hearing that he had no difficulty with that placement. In those circumstances, it was plainly in ZYF’s bests interests to be placed with Carer 2 on an interim basis.

The conditions of the interim accommodation order made on 8 January 2024 are a different matter altogether. In the course of the hearing on 21 December 2023, AGN had made it clear that he wished to make submissions about the conditions of the order, and the magistrate had scheduled a reserved submissions hearing on 8 January 2024 for that purpose. In the event, AGN was not permitted to make any submissions at the second hearing. The new interim accommodation order included all the conditions that had attached to the first order, and three new conditions were added.

At least three of the conditions were highly contentious, specifically:

(a) Condition 3, that AGN must not live or have contact with ZYF other than court ordered contact;

(b) Condition 5, which provides for contact between AGN and ZYF at least three times per week, to be supervised by Child Protection or its nominee unless Child Protection assesses that supervision is not necessary; and

(c) Condition 8, requiring AGN to submit to a paternity test.

On my assessment of the material before the magistrate, the factual basis for each of these conditions was thin. AGN’s extended absence overseas was not, of itself, a reason to impose such restrictive contact conditions, particularly when ZYF’s position was that they did not think that contact with their father needed to be supervised. The condition requiring AGN to submit to a paternity test was intrusive, given AGN is named as ZYF’s father on their birth certificate and has for all practical purposes been their father since birth.

These three conditions should not have been imposed without giving AGN a reasonable opportunity to make submissions about them. AGN had a great deal he could have said about whether these conditions were justified. In particular, he could have addressed the implication that there was a risk that he would sexually abuse ZYF, for example by directing the magistrate to the findings of Border Force, the Australian Federal Police, and SOCIT, after their investigations in late 2022.[51] It is telling that Child Protection did not press that aspect of its case at the hearing of the appeal.[52] AGN could also have made submissions in support of unsupervised telephone and electronic contact with ZYF, something that Child Protection no longer opposes.[53]
[51]See [7]–[8] above.
[52]See [97]–[100] below.
[53]See [90] below.

It follows that I consider that a different interim accommodation order should have been made. While the placement would not have changed, the conditions on the order restricting contact between AGN and ZYF would likely have been different if AGN had been given a reasonable opportunity to be heard. The condition requiring AGN to submit to a paternity test was in my view unnecessary and should not have been included.

For those reasons, I will set aside the interim accommodation order made by the Children’s Court on 8 January 2024.

What interim accommodation order should be made?

AGN’s position was that there should be no interim accommodation order in relation to ZYF. Alternatively, he sought an interim accommodation order placing ZYF in his care, with no conditions.

ZYF’s position was that an interim accommodation order should be made placing them in the care of AGN, with the following conditions:

1.Father must accept visits from and cooperate with DFFH.
2.Father must accept support services as agreed with DFFH.
3.Father must take the young person to be taken to the doctor for regular check-ups as required by DFFH or the doctor and must allow reports to be given to DFFH.
4.The young person may have sibling contact with [ZYF’s siblings] a minimum of two times per week including:
a.A minimum of one time per week together with [their] father at times and places as agreed between Father, young person and DFFH. DFFH or its nominee will supervise face-to-face contact unless DFFH assesses that supervision is not necessary.; and
b.A minimum of one time per week without [their] father, at times and places as agreed with DFFH.

DFFH or its nominee will supervise face-to-face contact unless DFFH assesses that supervision is not necessary.
5.Father must go to a psychologist and/or psychiatrist as agreed with DFFH for assessment and treatment and must allow reports to be given to DFFH.
6.Father must facilitate the young person’s engagement in therapeutic counselling with Take Two.
7.Father must engage with Take Two if requested to do so by Take Two.
8.Father must allow the young person to attend counselling.
9.Father must allow the young person to engage in a holiday program should the young person wish to do so.
10.Father must not leave the State of Victoria without first informing DFFH.
11.That until further order the father or her servants or agents be restrained from removing the child or attempting to remove the child from the State of Victoria. To give effect to this condition, it is requested that the Australian Federal Police place the name of this child on the Airport Watch List in force at all points of arrival and departure of the Commonwealth of Australia and maintain the child’s name on the watch list until further Order of the Court.
12.Father must not leave the young person unsupervised or unattended for more than three hours.
13.Father must not intimidate or make threats towards DFFH staff.
14.Father must not hit or hurt the young person.
15.Father must not expose the young person to physical or verbal violence.
16.Father must send the young person to [School 1] every school day unless [they are] ill and a medical certificate is obtained.
17.Young person may have respite as agreed between the father, DFFH and the young person.
18.Father must engage with an intensive in home parenting support program as directed by DFFH and follow through with any recommendations made.

Child Protection sought an interim accommodation order placing ZYF in the care of Carer 2, with conditions as follows:

1.Father must accept visits from and cooperate with DFFH.
2.Father must accept support services as agreed with DFFH.
3.Father must not live or have contact with the child other than court ordered contact.
4.Father must allow the young person to be taken to the doctor for regular check-ups as required by DFFH or the doctor and must allow reports to be given to DFFH.
5.Father may have face to face contact with the young person for a minimum of three times per week, including:
a.One time per week with the Father and [their] siblings at times and places as agreed between Father, young person and DFFH.
b.One time per week with the Father (without [their] siblings) at times and places as agreed between Father, young person and DFFH.

DFFH or its nominee will supervise face-to-face contact unless DFFH assesses that supervision is not necessary.
6.Father may have contact with the young person by telephone or electronic means without the need for supervision. The father must not discuss child protection concerns or court proceedings and must not disparage the young person’s carer during this contact.

7.The young person may have sibling contact with [ZYF’s siblings] a minimum of two times per week including:
a.As per Order 5(a) above, a minimum of one time per week together with [their] father at times and places as agreed between Father, young person and DFFH. DFFH or its nominee will supervise face-to-face contact unless DFFH assesses that supervision is not necessary.; and
b.A minimum of one time per week without [their] father, at times and places as agreed with DFFH.

DFFH or its nominee will supervise face-to-face contact unless DFFH assesses that supervision is not necessary.
8.Father must go to a psychologist and/or psychiatrist as agreed with DFFH for assessment and treatment and must allow reports to be given to DFFH.
9.The young person must engage in therapeutic counselling with Take Two.
10.Father must engage with Take Two if requested to do so by Take Two.
11.Father must allow the young person to attend counselling.
12.Father must allow the young person to engage in a holiday program.
13.The young person may have respite including a holiday program as agreed between the young person and DFFH.

I would prefer to have been able to remit the proceeding to the Children’s Court to determine what interim accommodation order should now be made in ZYF’s best interests. As the specialist court relating to children, which is also managing the protection application in relation to [ZYF’s siblings], the Children’s Court is far better placed to make that judgment. However, s 271 of the CYF Act does not permit me to remit the matter to the Children’s Court, but requires me to determine for myself what interim accommodation order ought to be made.

ZYF’s circumstances have changed since 8 January 2024. Most significantly, AGN has returned to Melbourne and is living at their home in Suburb 1. [ZYF’s siblings] have returned to Melbourne, they now have regular supervised contact with AGN, and ZYF has been able to see them again. ZYF has started at a new school, about which there are mixed reports. According to ZYF, they are enjoying school and making new friends. However, the school has reported some concerns about ZYF’s behaviour to Child Protection [redacted].

Unfortunately, the placement with Carer 2 has become strained. This is in part because, in late February 2024, Carer 2 took and read what appears to be ZYF’s diary, photographed some pages, and provided the photographs to Child Protection.

All parties were agreed that I should have regard to evidence of events that have occurred since the interim accommodation order was made on 8 January 2024. It is plainly in ZYF’s best interests to consider their current circumstances. There is also evidence that is available to me that was not available to the magistrate. This evidence includes an affidavit made by ZYF on 12 March 2024 setting out their wishes, and evidence about extracts from ZYF’s diary. It would ‘affront common sense’ not to take this evidence into account.

Placement

In determining what placement is in the best interests of ZYF, the CYF Act directs me to consider that a child is only to be removed from the care of their parent if there is an unacceptable risk of harm to the child.[54] This was not a consideration for the magistrate on 8 January, because AGN was still overseas and not in a position to provide daily care for ZYF. Now that AGN has returned to Melbourne, Child Protection accepted that ZYF should be returned to his care unless that would involve an unacceptable risk of harm to ZYF.[55]
[54]CYF Act, s 10(3)(g).
[55]Transcript, 28 March 2024, 99:4–29.

The CYF Act also requires me to consider ZYF’s views and wishes, and to give them appropriate weight.[56] ZYF’s position was very clear. They said in their affidavit:[57]

If I were to choose where I live tomorrow, I would live with my father and my siblings altogether.
If I cannot live with my father, my second preference is to live with my siblings wherever they are.
I feel very safe with my father and love him. It makes me very upset that I have not seen or spent time with him in a long time and that Child Protection think these things about him.

Child Protection’s submissions

[56]CYF Act, s 10(3)(d).

[57]Affidavit of ZYF dated 12 March 2024, [40]–[42].

Child Protection submitted that there was an unacceptable risk of harm to ZYF if they were to be returned to AGN’s care at this time. They relied primarily on extracts from ZYF’s diary which appear to disclose a history of physical and emotional abuse of ZYF by AGN. There are accounts of AGN hitting and hurting them, and of his threats to hurt them or to leave them. Child Protection submitted that the diary also contained concerning entries about ZYF’s own mental health, in particular references to self-harm and thoughts of suicide. The most concerning entry was to the effect that ZYF could see only two ways to get away from AGN: to tell an adult, or to kill themself.

In circumstances where ZYF has to date refused to engage with a counsellor, and is not receiving any mental health support, Child Protection submitted that to return them to AGN’s care would expose ZYF to an unacceptable risk of harm.

Other matters relied upon by Child Protection to establish an unacceptable risk were:

(a) There is a risk that AGN would flee the jurisdiction, taking ZYF with him. The apprehension of that risk is based on AGN’s conduct in leaving Australia with [ZYF’s siblings] in February 2023, during a Child Protection investigation into his care of ZYF and [their siblings].

(b) AGN has a long history of refusing to co-operate with Child Protection. His reactions to offers of support from Child Protection have at times been extreme and paranoid, giving rise to ongoing concerns for his mental health. He resisted Child Protection’s attempts to engage with him between November 2022 and February 2023, before leaving the country with [ZYF’s siblings]. In light of this history, Child Protection submitted that I could have no confidence that AGN was prepared to engage with services and address the protective concerns that exist in relation to ZYF, or that AGN’s care of ZYF could be monitored effectively.

(c) ZYF has no other relationships of trust with an adult to whom they might turn for support or protection. While ZYF previously had that kind of relationship with Carer 1, that support is no longer available. ZYF has recently changed schools, and there is no evidence that they have established a relationship of trust with a teacher or engaged with supports available at their new school.

(d) There are concerns that AGN has undiagnosed or untreated mental health issues, and he is yet to be assessed by a psychologist or psychiatrist in relation to these issues.

Child Protection emphasised the requirement to consider the effects of cumulative patterns of harm on ZYF’s safety and development.[58] It submitted that over the course of ZYF’s life there have been significant periods of transience, insecure housing, frequent changes of school, and erratic and suspicious behaviour by AGN that, added together, are likely to have had an adverse impact on their wellbeing.

ZYF’s submissions

[58]Referring to CYF Act, s 10(3)(e).

ZYF denied that AGN had ever hurt or neglected them. They said that they have a very strong relationship with AGN, love him, and feel safe with him. ZYF described the diary entries that appear to disclose past incidents of physical and emotional abuse as a work of fiction and only loosely based on their life.

In relation to cumulative harm, ZYF submitted that I should also take into account the impact of ongoing involvement of Child Protection, which ZYF finds to be intrusive and upsetting. They submitted that ‘systems abuse’ could also be a source of cumulative harm, which they explained as repetitive and intrusive exposure of a young person to systems investigating them, such as police or child protection workers.[59]
[59]Transcript, 28 March 2024, 128:5–16.

ZYF said that the concerns identified by Child Protection, such as flight risk and AGN’s lack of engagement with services, could be addressed by appropriate conditions.

ZYF’s counsel submitted that ZYF is at an age where they may just choose to ‘vote with their feet’ and go where they want to be — that is, to live with their father — even if they are ordered to live elsewhere. He said that it would be in ZYF’s best interests to avoid that situation, and that they should be placed with AGN with appropriate support services, monitoring, and oversight by Child Protection and the Children’s Court.

AGN’s submissions

In response to these submissions, AGN argued that Child Protection were trying to destroy his family relationship with ZYF, and had done so by alleging first sexual abuse, and now physical abuse. He said that Child Protection would keep on raising the sexual allegations against him, and had no intention to return ZYF to his care. He said that the allegation of paedophilia had been made without evidence, repeated to ‘pretty much everyone’ connected with the family, and had been automatically accepted.

AGN agreed that parts of ZYF’s writings were very worrying. He pointed out that the diary entries of concern were written towards the end of 2023, when he and ZYF were apart, and referred to periods many years in the past. He disputed that they disclosed actual events, but accepted that they had to be taken at their highest and that any conscientious person would be extremely concerned by them. AGN acknowledged that the diary entries were those of a distressed person. He said that he was not living with ZYF at the time because Child Protection had sent false information to authorities in Country C, causing [ZYF’s siblings] to be seized and held for the next five months.

AGN said that ZYF was thriving in the period from 2019 to 2022, as evidenced by their school reports from that time. He accepted that ZYF’s mental health had declined towards the end of 2023, and that his father, PGF, had been an unsuitable carer. AGN claimed not to have known about that, and blamed Child Protection for not sharing the information it had with him. He said that he had left the country in February 2023 because he was being relentlessly pursued with false claims of sexually molesting his own children, and that he had been absolutely terrified of what Child Protection would do with [ZYF’s siblings]. In hindsight, he said, leaving Australia at that time was a mistake, and he should have returned sooner.

According to AGN, the decline in ZYF’s mental health was also due to Child Protection telling ‘nearly everybody’ — including ZYF’s school and their mentoring agency — that ZYF was a victim of child sexual abuse by their father. He said that this weaponising of the claims by Child Protection had destroyed ZYF’s social life.

AGN submitted that it would be best for ZYF to return to his care, because they were not thriving out of his care, and the current placement was breaking down. He said that it would not be in their best interests ’to be turned into a foster kid’. He accepted that placement with him would require some strict conditions, including a psychological assessment and ongoing treatment for him, and therapeutic counselling for ZYF.

As to the claimed flight risk, AGN said that he would not be going anywhere without [ZYF’s siblings].

AGN echoed ZYF’s submission about the need to consider the harm that might be done to ZYF by separating them from him. He said that it was a dangerous state for a child to be away from their natural parent.

Consideration

The case that Child Protection makes now is very different from the case that it put before the magistrate on 21 December 2023 and 8 January 2024. For the time being at least, it does not press the ‘concerns’ about child sexual exploitation that were a feature of its involvement in AGN’s family between November 2022 and February 2023. The evidence to support these concerns was always weak, and counsel for Child Protection appropriately acknowledged that it was not sufficient to demonstrate a risk of harm due to sexual abuse.

AGN has reacted very strongly to suggestions that he has sexually abused his children or exposed them to some form of sexual exploitation. In many ways, the strength of his reaction is understandable. However, leaving Australia with [ZYF’s siblings] in February 2023 while leaving ZYF with PGF for an indefinite period was an extreme and irrational reaction. In addition, AGN’s prolonged absence appears to have been harmful for ZYF. As AGN acknowledged, ZYF has not thrived out of his care, their mental health has declined, and their writings reveal a level of distress. It is troubling that AGN does not seem to accept his responsibility for this state of affairs, but seeks to deflect it onto others — primarily Child Protection.

At present, I consider that there is an unacceptable risk of harm to ZYF if they were to be returned to AGN’s care. My reasoning is as follows:

(a) Since July 2022, when AGN left to bring [ZYF’s siblings] home to Australia from Country B, there have been only a few months when ZYF was in his day-to-day care. The arrangements that AGN made for ZYF’s care during his prolonged absence in 2023 were unsuitable. It is alarming that he appears to have been unaware just how unsuitable the arrangements were, and how badly ZYF’s mental health had declined, until Child Protection became involved in December 2023. While I make no firm findings, there is reason to think that AGN has neglected ZYF’s care since mid-2022, and that there is a risk that he may do so again.

(b) A number of entries from ZYF’s diary appear to record occasions on which AGN was physically violent to ZYF. Equally disturbing are accounts of emotionally abusive behaviour by AGN towards ZYF, including threats to leave them. I will not quote from the diary, in an attempt to preserve some privacy for ZYF, but I generally accept Child Protection’s submissions about what I should make of its contents. I am unable to resolve the extent to which the diary records actual events. However, caution dictates that I should assume that it does, and on that basis I consider that there is a risk that AGN will engage in similar physical and emotional abuse of ZYF in future.

(c) AGN’s interactions with Child Protection over many years have been suspicious, hostile, at times aggressive, and often counter-productive. His departure from Australia with [ZYF’s siblings] in February 2023 is the most extreme instance, but there are many others. The CRIS notes record some quite erratic behaviour by AGN, and those records are consistent with my own observations of AGN. All of this indicates that AGN may be living with some undiagnosed or untreated mental health issues that interfere with his ability to provide stable, safe, and consistent care for his children. He has not undertaken a recent psychological assessment, and has not yet engaged with any support service that might help him to address these issues. When he has done that, the assessment of risk may well change.

(d) I accept Child Protection’s submissions about the risk of cumulative harm to ZYF. Until ZYF was about eight years old, their living arrangements with AGN were unsettled and at times insecure. The possible disclosures of physical abuse in the diaries appear to relate to this period. ZYF enjoyed three good years between 2019, when AGN obtained secure housing, and 2022, when he left to bring [ZYF’s siblings] home. Since mid-2022, AGN has been largely absent from ZYF’s daily care. At the moment, AGN is preoccupied with the protection application concerning [ZYF’s siblings], and I am not confident that he can be a stable parent for ZYF. Again, that assessment may change when AGN has had a psychological assessment and is engaging with support services.

For those reasons, I find that there is an unacceptable risk of harm to ZYF if they were to be returned to AGN’s care right now. On an interim basis, I consider that it is in ZYF’s best interests to remain in the care of Carer 2.

I am acutely conscious that this is not what ZYF says they want, and that they have expressed a strong preference to live with AGN. However, their diary tells a very different story, and it is that story that has informed my assessment of risk.

I am also conscious that the placement with Carer 2 may not be viable for much longer. I will therefore make the interim accommodation order placing ZYF with Carer 2 for a limited period of two months. Within that time, AGN should have had a psychological assessment and engaged with support services, the Children’s Court Clinic assessment should have been completed and released, and the Children’s Court interim contest hearing foreshadowed for 29 May 2024 will have taken place. The placement that is in ZYF’s best interests can then be reassessed by the specialist Children’s Court, with more complete information than is available at present.

In this case, I am of the opinion that it is in ZYF’s best interests to withhold details of their whereabouts from AGN. While Carer 2 is a member of AGN’s family, there is a history of conflict between them and they have not spoken for many years. I understand that Carer 2 does not wish their address to be disclosed to AGN, and that doing so would undermine what is already a tenuous placement. I therefore made an order under s 265 of the CYF Act that the location of ZYF’s placement with Carer 2 is to be withheld from AGN.

Conditions

Having determined that ZYF should be placed with Carer 2, I accept that the conditions proposed by Child Protection are, for the most part, appropriate. Many of them were agreed to by ZYF and AGN.

The disputed conditions related to contact between AGN and ZYF. Consistent with my findings in relation to unacceptable risk, I consider that face-to-face contact should continue to be supervised for the time being, unless Child Protection assesses that it is not necessary. I have increased the minimum face-to-face contact from three to four times per week, to add at least one face-to-face contact that includes [ZYF’s siblings]. I note that four is a minimum, and that more frequent contact may take place by agreement between AGN, ZYF and Child Protection.

Contact by telephone and electronic means may take place without supervision. I have omitted the suggested condition prohibiting AGN from discussing certain matters during unsupervised contact, on the basis that it would be nigh impossible to monitor or enforce.

The conditions specify that AGN must accept support services and must go to a psychologist or psychiatrist as agreed with Child Protection for assessment and treatment, and must allow reports to be given to Child Protection.

The conditions also specify that ZYF must engage in therapeutic counselling, although I am aware that ZYF has to date resisted doing this. I have included that condition because both AGN and Child Protection agree that ZYF needs counselling, and because of the high level of distress that is evident from their diary entries.

Disposition

For those reasons, I set aside the interim accommodation order made by the Children’s Court in relation to ZYF on 8 January 2024, and made the following interim accommodation order in its place:

2.Until 8 June 2024 or further order, ZYF is to be placed with [Carer 2].
3.The location of ZYF’s placement under the interim accommodation order is to be withheld from AGN.
4.The following conditions apply to this interim accommodation order:
(a)AGN must accept visits from and cooperate with DFFH.
(b)AGN must accept support services as agreed with DFFH.
(c)AGN must not live or have contact with ZYF other than court ordered contact.
(d)AGN must allow ZYF to be taken to the doctor for regular check-ups as required by DFFH or the doctor and must allow reports to be given to DFFH.
(e)AGN may have face-to-face contact with ZYF for a minimum of four times per week, including:
(i)at least one time per week with AGN and ZYF’s siblings at times and places as agreed between AGN, ZYF, and DFFH.
(ii)at least one time per week with AGN (without ZYF’s siblings) at times and places as agreed between AGN, ZYF, and DFFH.

DFFH or its nominee will supervise face-to-face contact unless DFFH assesses that supervision is not necessary.
(f)AGN may have contact with ZYF by telephone or electronic means without the need for supervision.
(g)ZYF may have contact with their siblings a minimum of two times per week including:
(i)as per condition 4(e)(i) above, at least one time per week together with AGN at times and places as agreed between AGN, ZYF, and DFFH; and
(ii)at least one time per week without AGN, at times and places as agreed with DFFH.

DFFH or its nominee will supervise face-to-face contact unless DFFH assesses that supervision is not necessary.
(h)AGN must go to a psychologist and/or psychiatrist as agreed with DFFH for assessment and treatment and must allow reports to be given to DFFH.
(i)ZYF must engage in therapeutic counselling with Take Two.
(j)AGN must engage with Take Two if requested to do so by Take Two.
(k)AGN must allow ZYF to attend counselling.
(l)AGN must allow ZYF to engage in a holiday program.
(m)ZYF may have respite including a holiday program as agreed between ZYF and DFFH.

I made no order as to costs.

[2024] VSC 176

12 April 2024