DHHS v Brown - [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:

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.

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.

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

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DHHS v Brown

Details

AGLC: DHHS v Brown [2018] VSC 775
Case: [2018] VSC 775
Decision Date: 12 December 2018

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