DHHS v Brown

Case [2018] VSC 775


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 02049

SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES Appellant
v
MARY BROWN (A PSEUDONYM)[1] First Respondent
and
STEVEN BROWN (A PSEUDONYM) Second Respondent
and
JOAN BROWN (A PSEUDONYM) Third Respondent

[1]To ensure 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 respondents.

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JUDGE:

BEACH JA

WHERE HELD:

Melbourne

DATE OF HEARING:

6 December 2018

DATE OF JUDGMENT:

12 December 2018

CASE MAY BE CITED AS:

DHHS v Brown

MEDIUM NEUTRAL CITATION:

[2018] VSC 775

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Appeal from Children’s Court on a question of law – Whether Children’s Court erred in law in failing to make a ‘care by Secretary order’ – Whether Children’s Court erred in law when granting adjournment – Whether Children’s Court erred in law in making a ‘family reunification order’ – Horrific abuse of infant, not explained by parents – Whether decision and order open – Whether reasons adequate – Errors of law established – Appeal allowed – Children, Youth and Families Act 2005, ss 8, 10, 162, 274, 275, 276A, 287, 287A, 289, 294, 294A, 296, 329 and 527.

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APPEARANCES:

Counsel Solicitors
For the Appellant Dr I R L Freckleton QC with
Ms S Clancy
Department of Health and Human Services
For the First Respondent Mr J Hirst Amad Lawyers
For the Second Respondent No appearance
For the Third Respondent No appearance

HIS HONOUR:

  1. This proceeding concerns a 16-month old infant.  The appellant is the Secretary to Department of Health and Human Services.  The first, second and third respondents are respectively the child’s mother, father and maternal grandmother.

  1. In proceedings instituted by the Secretary in the Children’s Court, the Secretary, pursuant to s 275(1)(d) of the Children, Youth and Families Act 2005 (‘the Act’), sought a ‘care by Secretary order’ in relation to the child. Following a contested hearing conducted over five days in August 2018, a Children’s Court magistrate refused that application and instead made a ‘family reunification order’ under s 275(1)(c) of the Act.

  1. Pursuant to s 329 of the Act, the Secretary has now appealed to this Court, on a question of law, from the order made by the Children’s Court.

Background

  1. The child was born in July 2017.  He was premature and was required to remain in hospital to receive care.  In August 2017, he was discharged into the care of his mother.

  1. In September 2017, at about the age of 10 weeks, he required admission to hospital, being distressed, dehydrated and having significant swelling to his right leg.  At the time, he was observed to have scratches on his chin and neck, a graze on his left thigh, swelling of his scrotum and grazing over the left knee.  An initial X-ray confirmed that he had suffered a fractured femur.  Subsequent radiological investigations identified a total…

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DHHS v Brown [2018] VSC 775
Case
[2018] VSC 775
Decision Date

CaseChat Overview and Summary

The appeal before the court was brought by the Department of Health and Human Services (DHHS) against the decision of the Children’s Court, which had declined to make a ‘care by Secretary order’ for an infant child. The infant had suffered severe injuries that were not explained by the parents. The DHHS sought to appeal the Children’s Court’s decision on several grounds, including the failure to make a ‘care by Secretary order’, the granting of an adjournment, and the making of a ‘family reunification order’. The case was heard by the court on a question of law.

The primary legal issues that the court had to address were whether the Children’s Court had erred in law by not making a ‘care by Secretary order’ and by granting an adjournment. Additionally, the court had to consider whether the Children’s Court had erred in law when making a ‘family reunification order’, and whether the decision and the order were open to challenge and adequately reasoned. The court also needed to determine whether the DHHS had established errors of law in the Children’s Court’s decision.

The court found that there were indeed errors of law in the Children’s Court’s decision. The court held that the Children’s Court had failed to make a ‘care by Secretary order’ when it was clear from the evidence that the infant had suffered horrific abuse and the parents had not provided a satisfactory explanation. The court also found that the adjournment granted by the Children’s Court was not justified in the circumstances, and that the making of a ‘family reunification order’ was inappropriate given the severity of the abuse. The court concluded that the decision and the order were not adequately reasoned and were open to challenge. Consequently, the appeal was allowed.

The court set aside the decision and the order of the Children’s Court and made an order that the infant be placed in the care of the Secretary under the Children, Youth and Families Act 2005. The court also directed the parties to appear before the court for further directions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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