Cardell (a pseudonym) v Secretary, Department of Health and Human Services
[2019] VSC 781
•29 November 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 04408
| SAMANTHA CARDELL (a pseudonym)[1] | Appellant |
| v | |
| SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES | First Respondent |
| and | |
| REBECCA DAY (a pseudonym) | Second Respondent |
| and | |
| CHILDREN’S COURT OF VICTORIA | Third Respondent |
[1]To ensure that there is no possibility of the identification of the child the subject of this proceeding, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the appellant, the second respondent and the child.
S ECI 2019 04788
| SAMANTHA CARDELL (a pseudonym) | Plaintiff |
| v | |
| SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES | Defendant |
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JUDGE: | MAXWELL P |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 October 2019 |
DATE OF JUDGMENT: | 29 November 2019 |
CASE MAY BE CITED AS: | Cardell (a pseudonym) v Secretary, Department of Health and Human Services |
MEDIUM NEUTRAL CITATION: | [2019] VSC 781 |
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CHILD WELFARE – Child protection – Children’s Court – Child in need of protection – Risk of emotional or psychological harm – Family reunification order – Child in care of third party – Long-term care objective – Whether third party suitable as long-term carer – Child removed from third party – Secretary applied for ‘care by Secretary’ order – Third party sought revocation of family reunification order and restoration of prior care arrangement – Children’s Court refused revocation application, granted ‘care by Secretary’ order – Appeal on question of law – Whether Court misdirected itself – ‘Best interests’ test applied – No error – Appeal dismissed – Children, Youth and Families Act 2005 ss 10, 167, 275, 276, 289, 308 and 329.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant/Plaintiff | Mr H Draper (solicitor) | Chapman Tiesi |
| For the First Respondent/Defendant | Ms S Clancy | Child Protection Litigation Office |
| For the Second Respondent | No appearance | |
| For the Third Respondent | No appearance |
HIS HONOUR:
Summary
This proceeding concerns arrangements for the care of a two year old boy, to whom I will refer as Oliver. His mother, Rebecca Day, has a history of drug and alcohol abuse. Concerns about Oliver’s welfare prompted the Department of Health and Human Services (‘the Department’) to file a protection application within days of his birth. Oliver was initially placed on interim accommodation orders under s 262 of the Children, Youth and Families Act 2005 (the ‘Act’).
On 8 January 2018, the Children’s Court found that Oliver was in need of protection on the basis that he was likely to suffer emotional or psychological harm.[2] That finding was the basis for the making of a family reunification order (‘FRO’) under s 275(1)(c) of the Act. Under that order, formal responsibility for Oliver’s care was conferred on the Secretary to the Department.
[2]The Act s 162(1)(e).
Between October 2017 and July 2019, Oliver was in the care of the appellant, Ms Cardell, and her partner, to whom I will refer as Ms Kerry. In May 2019, the Department determined that family reunification was no longer the appropriate objective and that, instead, the objective should be permanent care, as provided for by s 167(1)(d). To that end, the Department filed an application for a ‘care by Secretary’ order (‘CBSO’) under s 289(1A) of the Act.
Ms Cardell and Ms Kerry informed the Department that they were not in a position to care for Oliver permanently. Subsequently, Ms Cardell and Ms Kerry separated, and Ms Cardell informed the Department that she wanted to be Oliver’s permanent carer. The Department conducted an assessment of Ms Cardell as a potential sole carer and determined that the proposed arrangement would not be in Oliver’s best interests.
Oliver was removed from Ms Cardell’s care on 8 July 2019 and placed in home-based care. On 22 July 2019, Oliver’s mother filed an application in the Children’s Court to revoke the FRO, and sought that Oliver be returned to Ms Cardell’s care.
The two applications — Ms Day’s application to revoke the FRO and the Department’s application for a CBSO — were heard together. The magistrate refused Ms Day’s application and granted the Department’s application. Ms Cardell now appeals against those orders under s 329 of the Act.
An appeal under s 329 is an appeal on a question of law. As I explained to the parties in the course of the hearing, the Supreme Court’s jurisdiction is supervisory only. The Court has no jurisdiction to review the merits of the Children’s Court decision. The Court’s function is confined to considering whether the magistrate’s decision was affected by error of law.
The essential complaint advanced in the appeal was that the magistrate had misdirected herself by substituting for the ‘best interests’ prescribed by the Act test a ‘protective concerns’ test. For reasons which follow, I consider that there was no error of law. The provisions of the Act are clear. The need to protect a child from harm is central to the ‘best interests’ principles which the Children’s Court was required to apply. In the circumstances of the case, the magistrate’s assessment of Oliver’s best interests necessarily involved paying close attention to protective concerns.
The statutory scheme
The power to revoke a family reunification order is found in s 308 of the Act:
308 Revocation of family reunification order or care by Secretary order
On an application under section 304 in respect of a family reunification order or on an application under section 305, the Court—
(a) must revoke the order if it is satisfied that—
(i)the Secretary, the child and the child's parent have agreed to the revocation; and
(ii)the revocation of the order is in the best interests of the child; and
(b)in any other case, may revoke the order if it is satisfied that it is in the best interests of the child to do so.
The power to make a ‘care by Secretary’ order is found in s 289 of the Act:
289 Care by Secretary order
(1) A care by Secretary order—
(a)confers parental responsibility for the child on the Secretary to the exclusion of all other persons; and
(b)subject to this Division, remains in force for a period of 2 years; and
(c)ceases to be in force when the child attains the age of 18 years or when the child marries, whichever happens first; and
(d)must provide that if, while the order is in force, the Secretary is satisfied that it is in the child's best interests, the Secretary may in writing direct that a parent of the child is to resume parental responsibility for the child.
(1A)Subject to Division 1, a care by Secretary order may be made on the application of the Secretary.
Section 10 of the Act sets out what are described as the ‘best interests principles’:
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.[3]
[3]Emphasis added.
Children’s Court proceeding
In the event that the FRO was revoked, parental responsibility for Oliver would have been returned to Ms Day, without any oversight from the Department. None of the parties submitted that it would be appropriate to return Oliver to Ms Day’s care. Instead, Ms Day proposed to the magistrate that, in order to mitigate concerns that Oliver would be returned to her care, she would undertake not to remove Oliver from Ms Cardell’s care until Ms Cardell obtained parenting orders from the Family Court (or Federal Circuit Court) of Australia.
Ms Cardell was joined to Ms Day’s application and agreed with Ms Day’s submissions. Ms Cardell additionally suggested that the Court could revoke the FRO and make an interim accommodation order placing Oliver in her care.
After Oliver was removed from Ms Day’s care, all of his contact with her was through supervised visits. For the first few months, those visits were supervised by Ms Cardell. In early 2018, however, Ms Cardell requested that the Department take over the supervision. Since then the Department has supervised Oliver’s contact with Ms Day. Since revoking the FRO would make the Department unable to supervise Ms Day’s time with Oliver, Ms Cardell and Ms Day submitted that Ms Cardell would be able to supervise Ms Day’s contact.
The magistrate first considered whether to revoke the FRO. She said:
Section 308 of the Act empowers the court to revoke a family reunification order if it is in the best interests of the child. The best interests test enables the court to consider a wide range of matters, including the considerations set out in section 10 of the Act. Relevant principles include the need to protect [Oliver] from harm (section 10(2)), the need to strengthen the relationship of [Oliver] to people significant to him (s10(3)(b)), the desirability of continuity and permanency in [Oliver]’s care (s10(3)(f)), the desirability of making decisions as expeditiously as possible (s10(3)(fa)), and the capacity of a potential care giver to provide for [Oliver]’s needs (s10(3)(j)).
In my view, the need to protect [Oliver] from harm is a critical matter to consider, particularly in light of the protection history in respect of [Oliver]. [Oliver] has been subject to court orders almost since birth. In those circumstances, the power given to the court to revoke the FRO requires the court to be satisfied either that the protective concerns have been adequately resolved and that [Oliver] is no longer in need of protection, or that any remaining protective concerns are balanced out by other best interests considerations.
Her Honour then listed the matters relied on by the Department in support of its contention that Oliver was still in need of protection. They were as follows:
·because of the ‘protective concerns’ arising from Ms Day’s mental health and substance abuse difficulties, she required supervision during her contact with Oliver;
·the Department had assessed Ms Cardell as unsuitable to care for Oliver on her own;
·Ms Cardell’s capacity to be a sole carer for Oliver was unknown and untested since, when Oliver was previously in her care, Ms Kerry had been there to support Ms Cardell;
·if the FRO was revoked, the Department would have no oversight over Oliver;
·Ms Cardell had not supervised Ms Day’s contact with Oliver since early 2018, and would need to recommence doing so without support from the Department;
·the proposed undertaking by Ms Day — not to remove Oliver from Ms Cardell — would not provide Oliver with sufficient protection in circumstances where Ms Day had filed an appeal against the Department’s decision to abandon the family reunification objective; and
·Oliver had settled into a new placement without difficulty.
The magistrate then listed the matters raised by Ms Day and Ms Cardell in support of their argument that it was in Oliver’s best interests that the FRO be revoked and that he be returned to Ms Cardell’s care. They were as follows:
·Ms Cardell had always been Oliver’s primary caregiver and they had a strong bond;
·the Department had not previously raised any significant concerns about Ms Cardell’s care; previous assessments and notes showed Oliver to have been developing well; and Ms Cardell was highly attentive to his needs;
·the Department’s assessment of Ms Cardell as a sole carer contained criticisms and concerns which were unsupported by evidence;
·Ms Cardell’s mental health issues were well managed and did not affect Oliver;
·expert medical opinion confirmed the importance of Oliver being placed in a safe, stable and consistent home environment;
·remaining in Ms Cardell’s care would enable Oliver to maintain a close relationship with Ms Kerry’s biological children;
·Ms Day and Ms Cardell had healed their relationship, and Ms Cardell was confident that she could supervise Ms Day’s contact with Oliver; and
·Ms Day had complied with a previous undertaking not to remove her older daughter from placement with Ms Cardell and Ms Kerry.
The magistrate found that Ms Cardell had provided Oliver with ‘good care and that the Department was satisfied with the care provided’. Her Honour was critical of the Department’s assessment of Ms Cardell as a sole carer of Oliver, and of its subsequent decision to withhold contact between Oliver and Ms Cardell:
In my view, the draft assessment … even as a draft document, was extraordinarily unfair to Ms [Cardell], lacked foundation for its many adverse conclusions, and totally failed to incorporate any acknowledgement of the close bond between [Oliver] and Ms [Cardell], and the good care which she has provided to him. This was then reflected in the Department’s decision to withhold contact between [Oliver] and Ms [Cardell] until it was court ordered, and then insist that it be supervised only. This deprived [Oliver] of contact with his primary attachment figure despite the absence of risk factors which would justify such an extreme decision.
Despite this, the magistrate ultimately determined that the uncertainties and risks of revoking the FRO were too great:
However, I also acknowledge that Ms [Kerry] shared the care of [Oliver] and provided Ms [Cardell] with physical and mental support. Ms [Cardell] as sole carer for [Oliver] is a scenario that is untested. In my view the court should be slow to revoke a FRO in circumstances where the features of the placement have changed in a material way, and those changes have not been tested over time. These changes would also include Ms [Cardell] supervising Ms [Day]’s contact, something which is also untested. Since the supervision of contact was resumed by the Department, none of the parties had sought to reinstate carer-supervised contact until the application to revoke the FRO was filed. I am concerned about these matters being tested without the oversight of the Department.
In addition, I am concerned about the adequacy of an Undertaking by the mother as the sole basis for securing [Oliver]’s placement in circumstances where Ms [Day] has not addressed the protective concerns pertaining to her and opposes the non-reunification case plan. Further, there are no Family Law proceedings on foot and the question of what Family Law Orders might be made, and when they might be made, is totally unknown.
I have formed the view that the protective concerns have not resolved to a degree that permits me to make a finding that [Oliver] is no longer in need of protection, or that it is in his best interests for the FRO to be revoked.
The magistrate then addressed the application for a CBSO. She concluded as follows:
In those circumstances, and in order to advance permanency planning for [Oliver], it is also in his best interests to grant the Department’s application for a Care by Secretary Order.
This appeal
The appellant submits that, in deciding whether to revoke the FRO, the magistrate applied a ‘protective concerns’ test instead of applying the ‘best interests’ test required by s 308. She relies on the following paragraphs of the decision:
In those circumstances, the power given to the court to revoke the FRO requires the court to be satisfied either that the protective concerns have been adequately resolved and that [Oliver] is no longer in need of protection, or that any remaining protective concerns are balanced out by other best interests considerations.
The only question for the Court is whether the protective concerns have resolved sufficiently for the FRO to be revoked.
I have formed the view that the protective concerns have not resolved to a degree that permits me to make a finding that [Oliver] is no longer in need of protection, or that it is in his best interests for the FRO to be revoked.
The appellant contends that the magistrate thus applied the wrong test and, further that this error vitiated both of her Honour’s decisions. As to the revocation application, the appellant points out — correctly — that the power to revoke a family reunification order is enlivened if the Court ‘is satisfied that it is in the best interests of the child to do so’.[4] According to the written submission, by focusing on whether the ‘protective concerns’ had been resolved, the magistrate ‘actively chose to ignore’ any consideration of what was in the best interests of the child.
[4]The Act s 308(b).
In relation to the ‘care by Secretary order’, s 289 of the Act does not contain any express jurisdictional condition. The appellant points, however, to s 276(2) of the Act, which relevantly provides that the Court must not make a protection order having the effect of removing a child from the care of its parent unless:
the Court considers that the making of the order is in the best interests of the child.
The appellant submits — and the respondent accepts — that, before granting the Secretary’s application, the Court had to be satisfied that making such an order was in Oliver’s best interests.
The submission was that the magistrate had given no separate consideration to Oliver’s best interests before making her decision on the Secretary’s application. She relied simply on the ‘protective concerns’ analysis set out in relation to the revocation application. On this reading of the reasons, it was submitted, the magistrate had:
made it clear that she was not applying the ‘best interests of the child’ test when making her decision to make the care by Secretary order.
Consideration
In my opinion, the appellant’s submissions must be rejected. There was no error of law. I am quite satisfied that her Honour applied the correct legal test — the ‘best interests’ test — in determining both of the applications before the Court.
The appellant’s submissions draw a false dichotomy between ‘protective concerns’ and ‘best interests’. That this is so appears most clearly from s 10(2) of the Act, to which the magistrate referred at the commencement of her analysis. That subsection relevantly provides as follows:
When determining whether a decision or action is in the best interests of the child, the need to protect the child from harm … must always be considered.
As counsel for the appellant properly conceded, the legislature has thus identified protective concerns — the need to protect the child from harm — as central to any assessment of the best interests of the child. By express statutory provision, the latter includes the former. In other words, when the magistrate addressed herself to what she called ‘protective concerns’, she was — by definition — addressing herself to the best interests of the child.
The considerations which may be relevant to an assessment of ‘best interests’ extend well beyond the need to protect from harm. Section 10(3) of the Act makes this clear. But, in the circumstances of the present case, it is unsurprising that protective concerns were to the forefront of the Children’s Court’s assessment.
As counsel for the appellant again properly conceded, her Honour was bound to pay careful attention to issues of protection, given the Children’s Court’s finding in January 2018 that Oliver was in need of protection on the basis that he was ‘likely to suffer emotional or psychological harm’.[5] As her Honour noted, the need to protect Oliver from harm was:
a critical matter to consider, particularly in light of the protection history in respect of [Oliver]. [He] has been subject to court orders almost since birth.
[5]Ibid s 162(1)(e).
It follows, in my view, that her Honour’s conclusion with respect to the revocation application is unimpeachable. It was expressed in these terms:
[T]he protective concerns have not resolved to a degree that permits me to make a finding that … it is in his best interests for the FRO to be revoked.
Not only was her Honour expressly applying the ‘best interests’ test but she was doing so by reference to the very matter which s 10(2) makes central to the evaluation of best interests. She had earlier set out, fully and accurately, all of the matters said by the parties to be relevant to the assessment of Oliver’s best interests. It is apparent, therefore, that all of those matters were taken into account in arriving at the decision.
The magistrate also was not persuaded that Oliver ‘is no longer in need of protection’. As the appellant pointed out, and the respondent accepted, it would have been open to her Honour to revoke the FRO even though she considered that Oliver was still in need of protection.[6] But that has no bearing on the issue for determination.
[6]See ibid s 274.
For similar reasons, there was no error in the decision to make the ‘care by Secretary’ order. Her Honour had given clear reasons for her conclusion that it was not in Oliver’s best interests for the FRO to be revoked and for him to be returned to Ms Cardell’s care. That is, her Honour was not satisfied that to proceed in that fashion would sufficiently protect Oliver from harm.
The next question was whether it was in his best interests to make the CBSO. The only question for this Court is whether her Honour applied the right test in doing so. Given that she expressly invoked the ‘best interests’ test, there is no basis for contending otherwise. Her Honour was, of course, entitled to rely on the ‘best interests’ analysis which she had already set out in connection with the revocation application.
‘Against the evidence’
The final ground relied on contended that, if (contrary to the principal submission) the magistrate did apply the correct test, her Honour’s conclusion that it was in Oliver’s best interests to make the CBSO was ‘against the evidence provided at the final contested hearing’. For this purpose, the appellant relied on the magistrate’s conclusions that Ms Cardell had provided Oliver with ‘good care’ and that the Department had been ‘satisfied with the care provided’.
This ground may be disposed of shortly. The appellant effectively invites this Court to say that, given those positive conclusions about Ms Cardell’s care of Oliver, the magistrate should not have concluded that it was in his best interests to grant the Secretary’s application. That contention does not raise a question of law. It is a challenge to the merits of the decision.
As counsel for the Secretary pointed out, this Court’s intervention could only have been attracted if the appellant had advanced, and established, either a ‘no evidence’ ground or an unreasonableness ground. That is, the appellant would have had to establish that it was not reasonably open to the magistrate, on the evidence before her, to reach the conclusion which she did. It will be apparent from what is set out earlier regarding the competing considerations that a ground formulated in those terms would have been bound to fail.
The parens patriae jurisdiction
In the days leading up to the hearing of the appeal from the Children’s Court decision, the appellant filed a separate proceeding in the original jurisdiction of the Supreme Court, seeking to invoke the ‘parens patriae’ jurisdiction. By originating motion, she seeks an order that Oliver be made a ward of the Court.
As explained by Osborn JA in Re Beth,[7] the parens patriae jurisdiction derives from the royal prerogative. It is ‘directed to the protection of children who are not legally competent to look after themselves’.[8] As his Honour concluded, the jurisdiction is broad and is ‘governed in its exercise by the consideration of the best interests of the child’. It is not excluded by the provisions of the Act.[9]
[7](2013) 42 VR 124.
[8]Ibid 147 [115].
[9]Ibid 151 [127].
Counsel for the appellant accepted that proper consideration of that application would require this Court to receive, and consider, detailed evidence about all of the circumstances bearing on an assessment of Oliver’s best interests. The Secretary having had no opportunity to file affidavit material, such consideration would have to occur — if at all — at a later date.
The written submission for the appellant contended that, if the appeal from the Children’s Court orders failed, then this Court should proceed to make its own order with respect to the care and protection of Oliver. I expressed the provisional view in the course of argument that, were that to be the outcome of the appeal, it was extremely unlikely that I would be persuaded to exercise the Court’s inherent power. I drew attention to authorities relied on by the Secretary (who is the defendant to the originating motion), the effect of which is that where a child’s welfare is being dealt with by a specialist court, under a legislative scheme explicitly directed at child welfare, the Supreme Court would be very slow to step in and exercise its own jurisdiction.[10]
[10]Re Anna, Bruno, Courtney and Deepak [2001] NSWSC 79, [20]; RC v Director-General, Department of Family and Community Services [2014] NSWCA 38, [65].
I remain of that view. The effect of my conclusion is that the appeal will be dismissed and the Children’s Court’s orders will stand. In the circumstances, it seems inconceivable that this Court would even entertain a submission that it should somehow override the Children’s Court decision and make a different decision with respect to Oliver’s care. There having been no argument on that separate application, however, I will simply adjourn the further hearing of the application to 31 January 2020. I will further order that, unless steps are taken to progress that application before that date, it will stand dismissed on that date without the need for further appearance.
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