De (a pseudonym) v Secretary of the Department of Families, Fairness and Housing
[2021] VSC 691
•26 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 00159
| DE (a pseudonym) | Plaintiff |
| v | |
| SECRETARY OF THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING (and others according to the attached schedule) | First Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 May 2021 |
DATE OF JUDGMENT: | 26 October 2021 |
CASE MAY BE CITED AS: | DE (a pseudonym) v Secretary of the Department of Families, Fairness and Housing |
MEDIUM NEUTRAL CITATION: | [2021] VSC 691 |
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JUDICAL REVIEW – Children’s Court – Protection application – Parties seeking consent orders dismissing the protection application – Power of Court to order additional report – Whether power to order additional report before disposition report ordered – Whether disposition report had been ordered – Jurisdictional error – Order for additional report quashed and matter remitted to Children’s Court – Children, Youth and Families Act 2005 ss 274, 275, 557, 558, 560.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Sutton | Orenstein Lawyers |
| For the First Defendant | Ms J Davidson | Solicitor, Department of Families, Fairness and Housing |
HIS HONOUR:
In July 2019, the Secretary of the Department of Families, Fairness and Housing[1] (‘the Secretary’) filed a Protection Application in the Children’s Court of Victoria (‘the Children’s Court’) in respect of a child on the basis that she was in need of protection within the meaning of s 162(1) of the Children, Youth and Families Act 2005 (‘the Act’). On 24 November 2020, the Secretary filed in the Children’s Court minutes of proposed orders consented to by the parties seeking orders that the protection application be struck out. On 27 November 2020, the Magistrate in the Children’s Court decided not to strike out the proceeding and instead made an order for the filing of a Children’s Court Clinic report in the following terms:
[1]Then the Department of Health and Human Services.
OTHER ORDER
Children’s Court Clinic Report ordered as attached.
DHHS MUST FILE & SERVE ANY FURTHER REPORT UPON WHICH IT PROPOSES TO RELY NO LATER THAN 30/01/2021.
ADJOURNED FOR MENTION AT Melbourne ON 02/02/2021 AT 10:00 AM. Part heard before Magistrate...
COURT ORDERS REPORT/s from:-
1. Clinic
No Conditions apply to this Adjournment.
…
THE COURT REQUESTS THE CLINICIAN TO INCLUDE IN THE REPORT AN OPINION/RECOMMENDATION AS TO:
1. A forensic risk assessment of the step-father arising from the allegations investigated by SOCIT in 2018
2. An assessment of the mother’s capacity to protect the children from harm, particularly of the nature arising from the allegations investigated by SOCIT in 2018. This assessment should also assess whether the mother has an intellectual disability.
The person described in the order as the step-father is the plaintiff. The third defendant and the fourth defendant are the child’s mother and father.
In this judicial review proceeding, the plaintiff challenges the Magistrate’s orders.
The Magistrate’s Reasons
The Magistrate explained her reasons for making the order requiring a report to be prepared by the Children’s Court Clinic as follows. Her Honour referred to s 557(1)(d) and stated that the Court had ordered the Secretary to submit a disposition report:
… arguably on a number of occasions, but at least on the 5th of September, 2019, there was an order for a further report or for reports by the 5th of November.[2]
[2]Transcript of Proceedings, Children’s Court of Victoria (27 November 2020), 2.
Her Honour stated that it was the Court’s practice to order, in the first instance, that the Department file both a protection[3] and disposition[4] report as it would unreasonably restrict the conduct of the case at every stage of the hearing if there was no report setting out the Department’s recommended disposition of the application. Her Honour considered that to split any Family Division case into pre-proof and post-proof stages was artificial. It had become standard practice for the Department to prepare and distribute a disposition report at a pre-proof stage, and this practice enabled the Court to know where it was heading. She therefore intended to order a risk assessment of the stepfather and a separate assessment as to the mother’s protective capacity, including whether she did or did not have an intellectual disability. After further submissions from Counsel, she reaffirmed her intention to order the report and said that when she obtained it, she would either agree or disagree with the clinician who made it. Counsel for the stepfather disputed that she had power to order the report. The Magistrate stated that she had power to do so in the absence of consent and to do so pre-proof. She said that she needed a report to properly decide the case. She also said that she could not force the stepfather to go to the clinic and talk for the purposes of the preparation of the report, but expected that he would participate.
[3]Protection reports are dealt with by ss 553-556 of the Act.
[4]Disposition reports are dealt with by ss 557-559 of the Act.
The Magistrate ordered the additional report because she was concerned that she lacked the information required to make a final order, and she was not willing to make orders according to the consent orders without a further specialist assessment regarding the risk to the child and the protective capacity of the mother.[5]
[5]Transcript of Proceedings, Children’s Court of Victoria (24 November 2020), 7.
The plaintiff challenges that order arguing in this proceeding, amongst other things, that it was affected by jurisdictional error. The plaintiff and the Secretary filed a joint memorandum in this Court seeking orders quashing the orders of the Children’s Court of 27 November 2020 and remitting the matter to a differently constituted Children’s Court to determine whether the following consent orders should be made:
(a) the protection application and all other applications not yet determined be struck out; and
(b) there is no order as to costs.
The plaintiff’s Originating Motion contained fourteen grounds of review.[6] At the suggestion of the parties, I agreed to decide the first seven grounds at this stage, which will, if I accept the plaintiff’s and first defendant’s submissions, determine the proceeding in this Court. The first four of these grounds claim that the Children’s Court misdirected itself at law and engaged in an actual or constructive failure to exercise its proper jurisdiction. The remaining three of the first seven grounds claim that the Children’s Court fell into jurisdictional error.
[6]Originating Motion, 3.
Before the Court can make orders by consent in a judicial review proceeding, it must be satisfied that it is appropriate to do so.[7] I therefore listed the proceeding to enable the parties to make submissions concerning the orders sought by the plaintiff and the Secretary. The third and fourth defendants did not participate in the hearing.
[7]Supreme Court of Victoria, Practice Note SC CL 9 Judicial Review and Appeals List, [8.1].
The Court’s Determination of the Issue Raised
The issue raised by this proceeding is whether, when the parties, including the Secretary who made the protection application, seek to have that application struck out, the Court can decline to do so, or postpone deciding whether to do so, while it obtains an additional report about the welfare of the child. I consider that the Court can take that step provided it has previously ordered, or required, a disposition report. In this case, no disposition report had been ordered, although the Secretary had previously filed such reports, without being ordered to do so. Accordingly, the Magistrate’s order for an additional report was not authorised by the Act and involved a jurisdictional error and must be set aside. The parties’ application for the Secretary’s protection order to be struck out must be remitted to the Children’s Court to be reheard by a differently constituted Court.
Section 560 of the Act empowers the Family Division of the Children’s Court to order an additional report if, first, it is a proceeding in which a disposition report is required under s 557(1) of the Act, and, secondly, if the Family Division is of the opinion that an additional report is necessary to enable it to determine the proceeding.
Section 557(1) of the Act states when the Secretary must prepare and submit to the Family Division a disposition report. Subsection (1)(d) requires the Secretary to prepare and submit a disposition report when the Court orders the Secretary to do so. The Children’s Court appeared to be of the view that a disposition report had been required under s 557(1) because there were already disposition reports on the file for the proceeding. These reports had been filed by the Secretary without the Children’s Court ordering the Secretary to do so. The filing of disposition reports without an order is common practice in the Children’s Court.
I will next set out the relevant provisions of the Act.
Legislation – Children, Youth and Families Act 2005
The relevant legislative provisions are ss 274, 275, 557(1), 558 and 560 of the Act.
Section 274 of the Act states:
When Court may make order under this Part
The Court may make an order under this Part in respect of a child if the Court finds—
(a) that the child is in need of protection; or
(b)that there is a substantial and irreconcilable difference between the person who has care of the child and the child to such an extent that the care and control of the child are likely to be seriously disrupted.
Section 275 of the Act states:
Types of protection order
(1)If the Court makes a finding under section 274 it may make any one of the following protection orders—
(a) an order requiring a person to give an undertaking;
(b) a family preservation order;
(c) a family reunification order;
(d) a care by Secretary order;
(e) a long-term care order.
(2)A protection order may continue in force after the child attains the age of 17 years but ceases to be in force when the child attains the age of 18 years.
(3)A care by Secretary order or a long-term care order may be made in relation to a child who is under the age of 18 years but ceases to be in force when the child attains the age of 18 years or marries, whichever happens first.
Section 557(1) of the Act states:
Disposition reports
(1)The Secretary must prepare and submit to the Family Division a disposition report if—
(a) the Court becomes satisfied that—
(i) a child is in need of protection; or
(ii)there is a substantial and presently irreconcilable difference between the person who has parental responsibility for a child and the child to such an extent that the care and control of the child are likely to be seriously disrupted; or
(iii)there has been a failure to comply with a family preservation order; or
(ab)the Secretary applies under section 289(1A) for a care by Secretary order; or
(ac)the Secretary applies under section 290(1A) for a long-term care order; or
(b) the Secretary applies for a permanent care order; or
(c)the Secretary applies, or is notified that a person has applied—
(i)for the variation or revocation of a family preservation order, a family reunification order or a permanent care order; or
(ii)for the extension of a family preservation order, a family reunification order or a care by Secretary order; or
(iii)for the revocation of a care by Secretary order or a long-term care order; or
(d) the Court orders the Secretary to do so.
Section 558 of the Act states:
Content of disposition report
A disposition report must include –
(a) the case plan, if any, prepared for the child; and
(b)recommendations, where appropriate, concerning the order which the Secretary believes the Court ought to make; and
(c)if the report recommends that the child be removed from the care of the child's parent, a statement setting out the steps taken by the Secretary to provide the services necessary to enable the child to remain in the care of the parent; and
(ca)the advice of the Secretary on the matters set out in section 276A, where they are applicable to the circumstances of the child; and
(d) any other information—
(i) that the Court directs to be included; or
(ii) that the regulations require to be included.
Section 560 of the Act states:
Additional report
If in any proceeding in which a disposition report is required under section 557(1) the Family Division is of the opinion that an additional report is necessary to enable it to determine the proceeding, it may order the preparation and submission to the Court of an additional report by—
(a) the Secretary; or
(b) the Secretary to the Department of Justice; or
(c) another person specified by the Court.
The Parties’ Submissions
The Plaintiff
The plaintiff submitted that the Magistrate should either have made the orders sought by consent or made a finding that a protection order was required. He argued that the Children’s Court has no power to order an additional report under s 560 of the Act unless there has first been a finding that a child was in need of protection under s 274. Section 274 allows the Children’s Court to make an order in respect of a child under Part 4.9 of the Act (which is titled ‘Protection orders’) if the Children’s Court finds that (a) the child is in need of protection; or (b) if there is a substantial and irreconcilable difference between the person who has care of the child and the child to such an extent that the care and control of the child are likely to be seriously disrupted. The language of s 274 is substantially mirrored by the language of s 557(1)(a)(i)-(ii).
Section 275 outlines the types of protection orders the Children’s Court may make if it makes a finding under s 274. The plaintiff argued that, by reading ss 274 and 275 together, it becomes clear that the Act requires a finding under s 274 before an order can be made under s 275. The plaintiff characterised disposition reports as being concerned with what might reasonably be included in an order under s 275, so that a disposition report would not be ordered prior to a finding under s 274.
On this basis, the plaintiff argued that a disposition report could not be ordered for the purposes of s 557(1) before a finding had been made under s 274, as there would not be any need for a disposition report unless such a finding had been made. Accordingly, the plaintiff, in essence, argued that s 557(1)(a) covers the field in cases where the proceeding is an application for a protection order. Whatever role s 557(1)(d) may serve, it was not relevant in this matter. Therefore, an additional report could only be ordered, if a need for protection of the child had been established and the requirements of ss 274 or 557(1)(a) thereby satisfied.
The plaintiff also submitted that the order for an additional report was inconsistent with the purpose and scheme of the Act, as well as prejudicial to the plaintiff when there had not been a protection finding and the Secretary no longer wished to pursue the matter. Despite the plaintiff denying the allegations contained in the Department’s reports, the order for an additional report would begin a new investigation involving him.
Counsel for the plaintiff framed his client’s concern as follows:
That's, I think, the heart of the problem in this matter, in my view, and perhaps it's best illustrated by this: had there been a hearing, a contest, in relation to the allegations of sexual abuse against the plaintiff and he had succeeded, we'd all walk out of court - that would be the end of the matter. It would not be up to the Magistrate to say, 'Hold on a minute, I still have a concern, I don't like the cut of [the step father’s] gib. I think there could be a protective issue here, I want a disposition report'.[8]
[8]Transcript of Proceedings, DE (a pseudonym) v Secretary of The Department of Families, Fairness and Housing (Supreme Court of Victoria, S ECI 2021 00159, 17 May 2021), 93-94.
The plaintiff submitted that the Act requires the Court not to take into consideration disputed matters contained in a report when determining the proceeding, prior to being satisfied on the balance of probabilities, that they are true.
The First Defendant
The Secretary argued that the Children’s Court has the power to order a disposition report under s 557(1)(d) of the Act prior to a finding that a child is in need of protection. The language of the Act did not limit when the Children’s Court could order the supply of a disposition report for the purposes of determining whether or not to strike out the proceedings. It could order a disposition report at any time.
However, the Secretary agreed with the plaintiff that the power to order an additional report under s 560 of the Act requires that the preconditions contained in s 557(1) had been satisfied. The Secretary also agreed that, in this case, the preconditions contained in s 557(1) had not been satisfied, as the Children’s Court had not decided that the child was in need of protection for the purposes of s 557(1)(a)(i) and had not made an order requiring the Secretary to file a disposition report under s 557(1)(d). None of the orders made by the Children’s Court prior to 27 November 2020 were orders requiring the Secretary to file a disposition report for the purposes of ss 557(1)(d) and 560. Therefore, while the Children’s Court has the power to act on its own motion or concerns, the power to order an additional report under s 560 had not been enlivened.
The Second Defendant
The Children’s Court, while adopting a Hardiman appearance, contended in written submissions that the presence of a disposition report on file, even if it had been provided in the absence of an order by the Children’s Court under s 557(1) and before any finding that a child was in need of protection had been made, was sufficient to enliven the Court’s power under s 560 to order an additional report. The disposition report on file should be treated as having been ordered and therefore as satisfying the requirement of s 557(1)(d), even though there had not been an express order for a disposition report. This was the common practice of the Court. Consequently, the Children’s Court had the power to order the additional report under s 560.
Analysis
I should first state that the Children’s Court was not obliged to make the orders sought by consent. However, if it did not, or it was not ready to decide whether to make the orders, the order that it did make for the provision of an additional report had to be authorised by the Act.
The plaintiff’s argument that the Children’s Court cannot order an additional report without making a finding under s 274 is not supported by the text or structure of the Act. While it is correct that the making of a protection order under s 275 first requires a finding to be made under s 274, it does not follow that the ordering of a disposition report under s 557 requires that a finding has been made under s 274. Disposition reports must include recommendations, where appropriate, concerning the orders which the Secretary believes the Court ought to make.
The practice, and it appears to be a useful practice, is that protection and disposition reports are often prepared and filed contemporaneously by the Secretary, even without any express order for a disposition report under s 557(1). There is no reason why the Court cannot rely on, and take those reports into account, provided of course the parties are aware of their contents. It will be for the Court to decide whether it is satisfied of the matters contained in them and as to the weight to be given to them.
There is no reason why the Court’s general power to order the Secretary to prepare a disposition report under s 557(1)(d) should be limited to circumstances where a finding under s 274 has already been made. The text of s 557(1)(d) does not contain any limitation on when this power can be exercised. Section 557(1)(d) must be given work to do and that will not be achieved, if its exercise is limited to the circumstances described in s 557(1)(a). Therefore, the proper construction of s 557(1)(d) is that the Children’s Court may order a disposition report at any time in the proceeding. An interpretation permitting the Children’s Court to order a Children’s Court Clinic report to help determine whether a child is in need of protection prior to a finding being made under s 274, is consistent with the Act’s principle that the best interests of the child must always be paramount.[9]
[9]Section 10(1) of the Act.
Nonetheless, s 560 makes clear that an additional report can only be ordered if (a) it is a proceeding in which a disposition report is required under s 557(1); and (b) if the Family Division is of the opinion that an additional report is necessary to enable it to determine the proceeding. The presence of a disposition report on file does not mean that it was provided pursuant to an order or a requirement within the meaning of s 557(1). In the absence of any such order, the filing of a disposition report in accordance with the Secretary’s general practice does not empower the Children’s Court to order additional reports under s 560. Therefore, if it is correct that the orders made by the Children’s Court prior to 27 November 2020 could not be regarded as orders made under s 557(1), then the Children’s Court had no power to order an additional report under s 560.
In my opinion, the plaintiff’s and Secretary’s submissions correctly characterise the prior orders as not ordering or requiring a disposition report. They do not contain any such order. The Children’s Court’s orders of 5 September 2019,[10] 31 March 2020,[11] and 2 November 2020[12] order the Department to ‘file [and] serve any further report upon which it proposes to rely no later than’ the given dates for each order. They do not order or require a disposition report, or to produce any report at all, but only require the Department to produce reports to the extent that it proposes to rely on them. By comparison, the Court’s orders of 27 November 2020, which are challenged in this proceeding and which I have set out above, expressly ordered the additional report.
[10]Exhibit CS-3 to the Affidavit of C Simper.
[11]Exhibit CS-8 to the Affidavit of C Simper.
[12]Exhibit CS-10 to the Affidavit of C Simper. While this order makes orders other than to file and serve any further reports, those other orders do not relate to any reports.
It might be argued that a formal order or requirement for a disposition report is not necessary if orders such as those of 5 September 2019, 31 March 2020 and 2 November 2020 are treated, in accordance with the Children’s Court’s practice, to be orders for disposition reports under s 557(1)(d). However, they cannot be read as having that effect.
Section 560 permits the ordering of an additional report when ‘a disposition report is required under s 557(1)’. Section 557(1) states that the Secretary must prepare and submit a disposition report to the Court in circumstances described in paragraphs (a)-(d). When the case fits within the descriptions contained in any of those paragraphs, then a disposition report can be taken as ‘required’ within the meaning of s 560, enabling the Court to order an additional report, if the Court is of the opinion that it is necessary to enable it to determine the proceeding. In my opinion, the relevant paragraph of s 557(1) is paragraph (d), which contains one of the circumstances in which the Court may order the Secretary to prepare and submit a disposition report. No such order was made in this proceeding even though the Secretary submitted a disposition report and did so in accordance with the established practice of filing protection and disposition reports early in the proceeding. The point that no formal order was made, while on one view a technical point, is more than that. The ordering of an additional report under s 560 can impose significant obligations on people who are to be the subject of the report. The ordering of the additional report is an exercise of a significant statutory power. It is important that the statutory preconditions for its exercise be observed. When that occurs the Court’s practices will comply with the statute’s requirements. The ordering of an additional report requires that the Family Division be of the opinion that an additional report is necessary to enable it to determine the proceeding. That need justifies the ordering of the additional report. It also provides an answer to the plaintiff’s concerns that he will become involved in another investigation. That answer is that the Court requires more information to decide the proceeding.
I accept the Secretary’s submission that the correct interpretation of ss 557(1)(d) and 560 is that disposition reports and additional reports can be ordered at any time of the proceeding. However, an additional report cannot be ordered under s 560 unless a disposition report has been ordered.
None of the above will preclude the Children’s Court upon the case being remitted to it from ordering that the disposition reports already provided by the Secretary be treated as, and stand as, disposition reports under s 557(1)(d). This would then empower the Children’s Court under s 560 to order the additional report that it seeks if it decided that such an order is a reasonable exercise of its power. All statutory power must be exercised reasonably.[13]
[13]MZAPC v Minister of Immigration and Border Protection [2021] HCA 17, [168] (Edelman J); Kruger v The Commonwealth (1997) 190 CLR 1, 36 (Brennan CJ).
Summary and Conclusion
In summary, I make clear that, in my opinion, the Children’s Court has power at any stage of the proceeding to order a disposition report. Provided that it has ordered a disposition report, the Children’s Court can also order an additional report under s 560 at any stage of a proceeding, including when being asked to approve consent orders dismissing a protection application. Section 560 deals with additional reports, which as the word ‘additional’ signifies, must be reports that are filed or provided when a disposition report has previously been ordered or required. The fact that the Secretary has already filed a disposition report without being ordered or required to do so is insufficient.
Accordingly, I will order that the order of the Children’s Court of 27 November 2020 be quashed and that the proceeding in which it was made be remitted to the Children’s Court, differently constituted, for the hearing and determination of the plaintiff’s and first defendant’s applications for consent orders that:
(a) the protection application and all other applications not yet determined be struck out; and
(b) there be no order as to costs.
I make it clear that it will be a matter for the Children’s Court, differently constituted, to decide whether it should make the consent orders.
Costs
While the plaintiff has obtained the order sought, the first defendant consented to those orders, albeit differing as to when an additional report could be ordered. I therefore do not consider it appropriate to order the first defendant to pay the plaintiff’s costs of this proceeding. I propose to make no order as to costs as I do not consider that the Secretary’s actions justify an order that the Secretary pay the plaintiff’s costs. The Secretary, at an early point, consented to the orders that I will make, having previously joined with the plaintiff in seeking consent orders in the Children’s Court seeking to strike out the protection application.
In the event that I decided not to order the Secretary to pay the plaintiff’s costs, the plaintiff sought a certificate under s 7(1) of the Appeal Costs Act 1998. But s 7 applies to an appeal against the decision of the Magistrates’ Court in a civil proceeding to the Supreme Court on a question of law and thus does not apply in this case. The Children’s Court is not the Magistrates’ Court. Rather, it is an independent court created by statute. I do not consider that I have power to grant the plaintiff an indemnity certificate.
SCHEDULE OF PARTIES
DE (a pseudonym) Plaintiff Secretary of the Department of Families, Fairness and Housing
First Defendant Children's Court of Victoria
Second Defendant DF (a pseudonym)
Third Defendant DG (a pseudonym)
Fourth Defendant
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