DHHS v Brown
[2018] VSC 775
•12 December 2018
| 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 of 24 fractures, including a fracture to his jaw, his arm and multiple fractures to his ribs, legs and feet.
Investigations excluded medical causes for the infant’s fractures. Ultimately, it was concluded that the child had almost certainly been subjected to multiple episodes of significant physical trauma. Child protection was recommended and police became involved.
On 20 November 2017, the Secretary determined that ‘safe reunification with the child’s parents was not likely’ and that it was in the child’s best interests that he live with ‘permanent care parents’. In order to achieve a permanent care placement, the Department sought a care by Secretary order. Section 289 of the Act provides that a care by Secretary order confers parental responsibility for the child on the Secretary to the exclusion of all other persons. Subject to the provisions of the Act, a care by Secretary order remains in force for a period of two years.
The rationale for the seeking of a care by Secretary order was that the significant injuries sustained by the infant were indicative of trauma inflicted on him during the seven weeks he was in his mother’s primary care. Moreover, neither parent had (or has) provided any reasonable explanation for how their son came to receive his injuries. Additionally, despite observing the leg swelling that led to his admission to hospital in September 2017, the child’s parents did not seek urgent medical treatment. Further, on the medical evidence available, the child’s delayed presentation for medical care may have long-term consequences adverse to him.
Proceedings at first instance
The infant was first removed from the care of his parents on 30 September 2017. On 2 October 2017, the Secretary filed a protection application pursuant to s 162(1) of the Act. The Secretary relied upon paras (c) and (e) of that section, contending that the child was in need of protection because:
·he had suffered significant harm as a result of physical injury and his parents had not protected him from harm of that type; and
·he had suffered emotional or psychological harm of such a kind that his emotional or intellectual development is, or is likely to be, significantly damaged and his parents have not protected him from harm of that type.
After a number of procedural steps and determinations, the protection application came on for hearing in August 2018. The hearing was contested. It was not in issue between the parties, however, that the Court should find that the child was in need of protection pursuant to s 274(a) of the Act.
Equally, it was not contested at the hearing that the child should remain out of parental care. What was in issue was whether the Court should make a family reunification order (contended for by the respondents), or a care by Secretary order (contended for by the Secretary).
Unlike a care by Secretary order (described above),[2] the Act provides (s 287) that a family reunification order only remains in force for a period not exceeding 12 months. Additionally, while a family reunification order confers parental responsibility for the child, and responsibility for the sole care of the child, on the Secretary, such an order does not affect the parental responsibility of any other person for making decisions about major long-term issues except as provided under the Act or by order of the Court.[3]
[2]See s 289 of the Act.
[3]See s 287 of the Act.
At the hearing, a significant body of evidence was called by the Secretary. The respondents, however, did not give or call any evidence.
The case for the Secretary was that there was credible information that the first and second respondents (the parents) had committed frequent assaults on the child, which he would have found terrifying while he was in their care. Moreover, the parents had failed to provide an adequate explanation for the child’s injuries. It was submitted that there was no realistic possibility that the child could be safely reunified into the care of either of his parents during the period of a family reunification order.
The case on behalf of the parents was that neither of them had caused the child’s injuries or had any knowledge of how those injuries were sustained. It was submitted that the mother had attended contacts with the child consistently which had been mainly positive and that she had engaged with relevant services positively. The parents contended that the Court should make a family reunification order to allow for the possibility of the child being reunified into his mother’s care.
The case for the third respondent (the maternal grandmother) was that she should be considered as an alternative carer for the child.
The Court appointed expert, Dr Fooks, who was requested by the Children’s Court to assess the viability of reunification, ultimately did not recommend that the child be reunified into the care of either of his parents. In cross-examination by counsel for the first respondent, Dr Fooks agreed that despite the severity of the child’s injuries, ‘it would be in the interests of all for there to continue to be meaningful and frequent contact with [the child]’. Dr Fooks was asked and answered the following question:
Is it your view that the potential for reunification should not be closed off at this stage, and there should still be the option and the opportunity for reunification to be attempted? - - - I do think that there is a small window where there might be room for that, but it is problematic that these injuries are unaccounted for.
A little later in her cross-examination, Dr Fooks said that ‘it is important for children as they grow, and the value of having that, of knowing his community, and his biological relatives, his background, is a valuable one’.
On 16 August 2018, with only part of the evidence of Dr Fooks to be called the following day, the magistrate said that he was tentatively thinking of 13 September for a decision. There was then an exchange between the magistrate and counsel for the mother that is relevant to a ground of appeal that complains about the matter subsequently being adjourned from 13 September until 3 October:
MOTHER’S COUNSEL: Your Honour, I’d be making submissions about when it would be appropriate to come back?
HIS HONOUR: What do you mean?
MOTHER’S COUNSEL: Well, Your Honour, I’ve just been doing a chronology, and, in my opinion it would be 30 September would be the final date Your Honour could make [a family reunification order] if you made one on the 13th.
HIS HONOUR: That’s right.
MOTHER’S COUNSEL: And, having considered the evidence, Your Honour should adjourn the matter to 1 October, which is the first Monday sitting after - - -
HIS HONOUR: I see your point.
MOTHER’S COUNSEL: Just to consider the evidence and leave the options open.
HIS HONOUR: I’ll keep 13 September, because, if I am thinking of that, then I’ll adjourn, but, I don’t know what — I could be saying, ‘Care by secretary on the 13th’, but I follow your point, the 30th is the 12 months.
MOTHER’S COUNSEL: It would be a two week [family reunification order].
HIS HONOUR: I [understand] the chronology.
MOTHER’S COUNSEL: Yes, yes.
HIS HONOUR: But, I think I’ll give you a decision, because if it is a [family reunification order], it’s not going to be for however many days, two weeks, I’d say, ‘Well, look, I am thinking of that, and we’ll come back on the 1st’, and, but, I mean.
On 17 August 2018, at the conclusion of the hearing, the magistrate reserved his decision, saying he would attempt to make a decision on 13 September. An interim accommodation order placing the child in out-of-home care, with all contact with his parents fully supervised, was extended.
On 13 September 2018, the magistrate came into court, but again adjourned the matter — this time to 3 October 2018 for a decision. In the course of the short hearing on 13 September, the following exchange occurred between the magistrate and counsel for the Secretary:
HIS HONOUR: It’s not going to be a short [family reunification order], it’s going to be a long [family reunification order].
…
COUNSEL FOR THE SECRETARY: I merely want to point out, your Honour, that there is no — I don’t think it’s appropriate to have a short or a long [family reunification order].
HIS HONOUR: I know.
COUNSEL FOR THE SECRETARY: Because there is never going to be a reunification.
HIS HONOUR: I know. Yes, I know. I know. I’m aware of that.
COUNSEL FOR THE SECRETARY: I’m inviting your Honour to bite the bullet.
HIS HONOUR: No, no, yes, I know. I’m very clear in the decision of why - - -
…
Look I know it’s going to be highly controversial, but I think when you read it, you’re not going to be overly disappointed. Maybe you don’t get your care by Secretary order. I think you’ll go, ‘this is, sort of, the consolation prize, but it really is inevitable what this about’ (sic), but, I think I formed the view it was, I just - - -
A little later, there was further discussion as follows:
COUNSEL FOR THE SECRETARY: If you recall, one of the witnesses that came, you asked them point blank, would there be a service that would be appropriate, and the answer was - - -
HIS HONOUR: I think I used an expression possibly in this one, it’s a very odd road if reunification is even likely, and, we know it’s probably not going to happen, but - - -
COUNSEL FOR THE SECRETARY: And if that’s the case, I wonder whether the order is appropriate, because the legislation requires that the reality should be fulfilled within the life of the order. Reunification. Within the life of the order.
On 3 October 2018, the magistrate made a family reunification order. The order was expressed to be in force from 3 October 2018 until 29 September 2019. The sealed order contained five paragraphs of ‘notations’, under a heading ‘Order/s Uncontested’. These notations are the subject of one of the Secretary’s grounds of appeal. The notations included a statement that it was ‘the Court’s primary intention that the mother should be provided with encouragement and support to attempt a reunification with [the child]’, and that to do so the mother needed to take various steps including developing better parenting skills. The notations also included a specific reference that the mother ‘must do everything in her power to address the enormous harm that has been caused to [the child]’ and in doing so ‘must put his needs as paramount (sic)’.
Additionally, the magistrate attached 11 conditions to the family reunification order made by him. These conditions included:
·a condition that the mother and father must not hit or hurt the child for any reason and must not expose the child to physical or verbal violence; and
·a condition that the mother may have contact with the child for a minimum of three times a week for a minimum of two hours at times and places as agreed between the mother and the Department; with the Department, or its nominee, supervising contact unless the Department assessed that supervision was not necessary.
Conditions were also imposed in relation to contact between the child and his father and maternal grandmother.
It is now necessary to describe the magistrate’s reasons for decision.
The magistrate’s reasons
The magistrate commenced his reasons for decision as follows:
This baby has experienced horrific abuse whilst in the care of these young parents. Still no person has taken responsibility for these serious injuries and the parents and their friend perpetrate a nonsense proposition that most of these injuries may have occurred at the hospital or by some friend who did not have care of the child.
After describing some of the child’s injuries, the magistrate said:
I am satisfied that the protective report given to [the Department] about the observed abuse of [the child] by his parents is probably as credible as the principal practitioner believed and explains the injuries and presentation of the child. [4]
[4]In the first of the Secretary’s grounds of appeal, the Secretary notes that the protective report in question stated that the mother and the father had assaulted the child on a daily basis, including by screaming into the child’s face, shaking and slapping him and, on one occasion, leaving him in a dark cupboard.
The magistrate then discussed whether the maternal grandmother (third respondent) was a suitable person who could care for the child. Ultimately, he concluded that that placement was unsuitable as the maternal grandmother had five children ‘who were all removed from her care due to exposure to domestic violence, drug use and neglect’.
The magistrate concluded his reasons as follows:
This matter is perplexing for me because while there are serious unexplained injuries to a baby, the young mother has great potential to become properly skilled in parenting so that this tragedy never happens again. I am persuaded that the parents know how these serious injuries occurred however will not divulge that information knowing that criminal charges would then be laid. Therefore, it is most likely that no prosecution will ever be pursued. The DHHS is not so perplexed as it seeks a CBSO and will immediately reduce contact with the parents offering no hope of any reunification.
I have not been persuaded that the DHHS’ approach is in the best interests of the baby. The decisions that were made after the birth of the baby and the level of scrutiny applied to the family after the birth were in hindsight flawed. I am not satisfied that the child should be denied the possibility of be[ing] in a parent’s care due to the mother not be sufficiently skilled-up at the start of the child’s life. While it is true that the child is lucky to be alive, I am satisfied that the mother has the potential to redeem herself if she has the commitment and I am inclined to allow the possibility of reunification. Therefore, I am persuaded that a family reunification order is in the baby’s best interests however the mother has a long road ahead to demonstrate that she can become a capable and safe parent.
Grounds of appeal
By an amended notice of appeal, the Secretary relied upon four grounds of appeal as follows:
1.The Court erred in law in failing to find that a Care by Secretary Order was in the best interests of the Child, in circumstances where:
(a)The Court found that:
(i)the Child had experienced horrific abuse whilst in the care of the Mother and the Father;
(ii)by the time the Child was 10 weeks old, he had 24 confirmed fractures, at different stages of healing, and the forensic paediatrician could not exclude the possibility that the Child had also suffered abdominal trauma.
(iii)the report received by the Principal Practitioner was credible, and it explained the injuries and presentation of the Child (the report stating that the Mother and the Father had assaulted the Child on a daily basis, including by screaming into the Child’s face, shaking him, slapping him and, on one occasion, leaving him in a dark cupboard);
(iv)the only explanation that had ever been given by the Mother and the Father, for the Child’s injuries, was ‘nonsense’ (the explanation being that the injuries had occurred at the hospital, or had been caused by a friend who did not have care of the Child);
(v)the Mother and the Father knew ‘how these serious injuries occurred however [they] will not divulge that information knowing that criminal charges would then be laid’;
(b)the Child was on an Interim Accommodation Order, placing him in out of home care, and had so been since 9 October 2017, having initially been placed in the care of the hospital on an Interim Accommodation Order on 1 October 2017;
(c)a protection order conferring parental responsibility to the Secretary had to be made, the only question being whether it should be a Care by Secretary Order (s 289) or a Family Reunification Order (s 287);
(d)s 276A of the Act was engaged, given (c) above;
(e)s 276A(2)(a) of the Act made it a mandatory consideration for the Court to have regard to the advice of the Secretary as to the likelihood of the Mother or the Father permanently resuming care of the Child during the term of any protection order which the Court might make;
(f)the maximum term of a Family Reunification Order which the Court could make was:
(i)as at the date of the hearing (13 to 16 August 2018), 1½ months (see s 287A(2) of the Act);
(ii)as at the date of making the protection order (3 October 2018), just under 12 months (see s 287A(3) of the Act);
(g)the advice of the Secretary was that neither the Mother nor the Father could permanently resume care of the Child in the next 12 months;
(h)there was no evidence that it was likely that the child would be reunified into the care of a parent during the term of a Family Reunification Order.
2.The Court erred in law in failing to consider advice from the Secretary as to whether it was possible for the Child to be back into the care of the Mother and/or the Father during the period of any protection order the Court might have made pursuant to s 275 of the Act.
3.The Court erred in law, and made a decision contrary to the requirements of the Act, by:
(a)failing to give adequate reasons explaining the basis for the Court’s finding that a Family Reunification Order and not a Care by Secretary was in the best interests of the Child;
(b)including, as part of its sealed orders, matters as ‘Notations/Order(s) Uncontested’ that purport to have the effect of orders and/or purport to be further reasons for decisions, when neither is permitted by the Act, including s 527(6)(a);
4.The Court erred in adjourning the protection application on 13 September 2018 to 3 October 2018 for the purpose of circumventing the express limitation imposed on the Court by virtue of s 287A(2) of the Act, that where a child has been in out of home care for less than 12 months, a Family Reunification Order must not have the effect that the child will be placed in out of home care for a cumulative period that exceeds 12 months.
The parties’ contentions
The Secretary submitted that, on a proper consideration of the whole of the evidence, it was simply not open to the magistrate to refuse to make a care by Secretary order, or to make in its place a family reunification order. Giving paramountcy to the best interests of the child (as required by s 10 of the Act) mandated the making of a care by Secretary order. A family reunification order was also not open because, amongst other things, the Court could not have been satisfied that there was a reasonable possibility of the child being reunified in the care of his parents during the period of the order. The requirement to establish this matter was said to be inferred by the operation of ss 8, 10, 276A and 287 of the Act.
Having submitted that the only order able to be made was a care by Secretary order, it was submitted that the appeal should be allowed and that this Court should now make the order the magistrate should have made. It was contended that remitting the proceeding to the Children’s Court would ‘render the appeal nugatory’ because that Court would not in the ordinary course of events rehear the matter for an unsatisfactory length of time. The history of the matter being ‘not reached’ when fixed for a hearing before August 2018 was said to support this submission.
Complaint was also made by the Secretary that the magistrate’s reasons were so inadequate as to constitute an error of law. As part of this complaint, the Secretary contended that the five paragraphs of notations on the order of the Court was not permitted by s 527(6)(a) of the Act.[5] Moreover, the provision of the notations did not, in any event, operate so as to make the reasons provided adequate.
[5]A provision that requires the Family Division of the Court making a final order to ‘state in writing the reasons for the order’.
Finally, the Secretary submitted that the magistrate erred in law in adjourning the proceeding from 13 September to 3 October 2018 for the improper purpose of circumventing a limitation imposed by s 287A(2) of the Act which resulted in the magistrate being able to avoid dealing with the operation of s 294A(1)(a) of the Act.
Counsel for the first respondent submitted that none of the Secretary’s grounds of appeal should be upheld in this Court.
In his submissions, counsel for the first respondent emphasised that the Children’s Court is a specialist court, and that the role of that court ‘as a specialist jurisdiction is well recognised’. As such, it was submitted that the Court had a wide range of discretions in the conduct and management of its proceedings. It was submitted that ‘the Court may do anything in the management and conduct of proceedings, as long as it is in the best interests of the child, does not otherwise conflict with the legislation and does not breach the rules of natural justice and procedural fairness’. Reference was made by counsel to, among other decisions, the Secretary, Department of Human Services v Ross[6] and Secretary to the Department of Human Services v Sanding.[7]
[6][2003] VSC 172.
[7](2011) 36 VR 221 (‘Sanding’).
The first respondent submitted that the decision made by the magistrate was one that was lawfully open to him. Emphasis was placed upon the evidence given by Dr Fooks about the benefits of reunification and the possibility of this occurring in the best interests of the child in the present case. The evidence given and tendered before the magistrate was submitted to be sufficient to justify the order now sought to be impugned.
Additionally, it was submitted that it was within the magistrate’s discretion to adjourn the matter as he did for the purpose of giving the parents the opportunity to engage with services which might facilitate a family reunification — an opportunity that had at the time of the hearing before the magistrate not then been afforded to them (either by the appellant, or more generally).
The first respondent contended that the complaints made by the Secretary that the magistrate had failed to consider advice from the Secretary as required by the Act was not made out. On the face of his reasons, the magistrate was very much alive to, and took into account, the advice from the Secretary, and in particular the advice as to the matters specified in s 276A(2) of the Act.
Finally, the first respondent submitted that there was no inadequacy in the magistrate’s reasons. The reasons displayed a clear path of reasoning. Additionally, it was submitted that the contents and detail of reasons that the magistrate was required to provide was informed by the fact that s 328 of the Act permitted an appeal by way of rehearing de novo to the County Court. Moreover, s 527(12) was said to expressly prohibit the quashing of an order on account of the failure by the Children’s Court to comply with the provision in the Act requiring reasons to be given (s 527(6)).
Before resolving the competing arguments of the parties, it is necessary to say something about the nature of the appeal to this Court.
The nature of the appeal to this Court
The Act contains a number of appeal provisions. The one relied upon by the Secretary in the present case is s 329(1). Section 329(1) provides that a party to a proceeding before the Family Division may appeal to this Court, on a question of law, ‘from a final order of the [Children’s Court] in that proceeding’. The expression ‘final order’ is not defined.
At the commencement of the hearing, I raised with counsel for the first respondent whether any issue was taken about whether the order made by the magistrate on 3 October was a ‘final order’ within the meaning of s 329(1). No issue was taken.
In other contexts, orders have been held not to be final orders unless they finally determine rights between parties.[8] On one view, it might be thought that an order limited to have effect only until September 2019, and which may be varied or replaced following an application pursuant to a provision of the Act that contemplates such a variation or replacement might not be thought to be a final order in this sense.
[8]See, eg, Hall v The Nominal Defendant (1966) 117 CLR 423.
To so hold, however, would likely deprive s 329 of any operative effect — most (if not all) orders capable of being made in the Family Division under the Act being capable of variation, and also being of limited duration.
The better view seems to me to be that the expression ‘final order’ in s 329(1) is there being used as an antonym of an interlocutory procedural order made along the way to the determination of the application for a substantive order of the kinds contended for by the parties at the hearing before the magistrate in the present case.[9] This approach is consistent with the way appeals under this section have been conducted in this Court in the past, and also under s 117(1) of the Children and Young Persons Act 1989 (the predecessor of s 329(1)). In the circumstances, I am prepared to accept that the order from which the Secretary appeals is a final order within the meaning of s 329(1).
[9]Cf Kinex Exploration Pty Ltd v Tasco Pty Ltd [1995] 2 VR 318, 320–1 (per Batt J, as his Honour then was).
While the appeal under s 329 of the Act is an appeal on a question of law only, the Secretary contended that, in the event the appeal was allowed, this Court had power to receive (and should receive) additional evidence in order to determine what order should ultimately be made. In advancing that contention, the Secretary noted that s 329(8) provided that after hearing and determining an appeal under s 329, this Court ‘may make such order as it thinks appropriate, including an order remitting the case for rehearing to the [Children’s] Court with or without any direction in law’.
In support of this contention, the Secretary relied upon Bell J’s decision in Sanding. In Sanding, his Honour said:
The paramountcy principle can influence the procedures which should be adopted on appeal. In CDJ v VAJ,[10] the High Court held that, in determining whether to admit further evidence in an appeal against the making of a parenting order, the Full Court of the Family Court of Australia ‘must have regard to the effect that the further evidence may have in determining whether the best interests of the child require’[11] the order to be set aside.[12]
[10](1998) 197 CLR 172 (‘CDJ’).
[11]Ibid 195, per McHugh, Gummow and Callinan JJ; see also T and S (2001) FLC ¶93-086, [75]–[76], [185]–[186].
[12]Sanding (2011) 36 VR 221, 254–5 [144] (citations in original).
While not wishing to foreclose the possibility of this Court receiving fresh evidence following the successful conclusion of an appeal under s 329, in appropriate circumstances, it is to be remembered that this Court’s function in the jurisdiction currently engaged by the parties is a limited one, circumscribed by the terms of s 329 of the Act. Moreover, it is to be remembered that the appeal to the Full Court of the Family Court in CDJ[13] was an appeal by way of rehearing,[14] not one limited to a question of law as in the present case.
[13](1998) 197 CLR 172.
[14]Ibid 201–2.
Moreover, as was said by French CJ, Gummow and Bell JJ in Osland v Secretary, Department of Justice [No 2],[15] when discussing the Court of Appeal’s jurisdiction under s 148 of the Victorian Civil and Administrative Tribunal Act 1998, which provides for an appeal by leave on a question of law:
The Court of Appeal, in the exercise of its jurisdiction under s 148 of the VCAT Act, may make substitutive orders where only one conclusion is open on the correct application of the law to the facts found by the Tribunal. Such a case arises when no other conclusion could reasonably be entertained. In that event, the Court can make the order that the Tribunal should have made. The language of s 148(7) is also wide enough to allow the Court of Appeal to make substitutive orders in other circumstances. But its powers must, as with the equivalent powers of the Federal Court in relation to the AAT, be exercised having regard to the limited nature of the appeal. Absent such restraint, a question of law would open the door to an appeal by way of rehearing. Where there is a factual matter that has to be determined as a consequence of the appeal, it may be that it is able conveniently to be determined by the Court of Appeal upon uncontested evidence or primary facts already found by the Tribunal. When the outstanding issue involves the formation of an opinion which is, as in this case, based upon considerations of public interest, then it should in the ordinary case be remitted to the body established for the purpose of making that essentially factual, evaluative and ministerial judgment.[16]
[15](2010) 241 CLR 320.
[16]Ibid 332–3 [20] (citation omitted).
Counsel for the first respondent contended that there was no occasion for this Court to consider fresh or new evidence[17] on an appeal limited to a question of law. This Court should not stray into the facts, or countenance any suggestion that it resolve disputed facts.
[17]As to the distinction between ‘fresh evidence’ and ‘new evidence’, see Bowden (a pseudonym) v The Queen [2017] VSCA 46 [34].
If there is a power in the Court to receive such evidence on an appeal of the present kind, all one needs say at the moment is that such a power could only exist because of the paramountcy to be given to the best interests of the child. Moreover, it would only be exercised in the rarest circumstances. In the present case, for reasons which will become plain, it is not necessary for me to resolve this controversy because the appeal is able to be resolved without reference to the new or fresh evidence that the Secretary sought to tender.
Did the magistrate err in law in adjourning the proceeding until 3 October?
In order to resolve the Secretary’s complaint about the adjournment to 3 October, it is necessary to set out some further provisions of the Act.
Section 287A(2) provides that if the child has been in ‘out of home care for less than 12 months’ under a relevant order (in this case an interim accommodation order), ‘the period specified in a family reunification order must not have the effect that the child will be placed in out of home care for a cumulative period that exceeds 12 months commencing on the date that the child is first placed in out of home care’. In the present case, the child was first placed in out of home care on 30 September 2017. That meant that if the magistrate made a final order on or before 29 September 2018, then the duration of the order would have to be limited to a period up to and including 29 November 2018.
Section 287A(3) deals with the position where the child has been in out of home care for 12 months or more but less than 24 months under a relevant order. In the case of a child in those circumstances, the period specified in the family reunification order ‘must not have the effect that the child will be placed in out of home care for a cumulative period that exceeds 24 months commencing on the date that the child is first placed in out of home care’. In the present case, that meant that if the magistrate did not make an order before 30 September 2018, he could then make a family reunification order for a period ending on 29 September 2019.
Section 294 of the Act permits the Children’s Court to extend a family reunification order if it is satisfied that this is in the best interests of the child. The extension may be for a period of no more than two years but must not, in any event, result in a child being in out of home care for a cumulative period of more than 24 months.[18]
[18]See ss 296(1) and (4) of the Act.
The Secretary’s position is that if the magistrate determined that a family reunification order was appropriate then that order should have been made on 13 September 2018 for a period ending on 29 September 2018. Subject to compliance with the Act, there could then be an extension of the family reunification order until 29 September 2019. The impediment, however, to the magistrate taking that course in this case is to be found in s 294A(1)(a) of the Act. That section provides:
The Court must not extend a family reunification order unless it is satisfied that –
(a)there is compelling evidence that it is likely that a parent of the child will permanently resume care of the child during the period of the extension;
In the present case, far from there being ‘compelling evidence’ that it was likely that one of the parents of the child would permanently resume care of the child during the period 30 September 2018 to 29 September 2019, the evidence was completely to the contrary.
The ‘compelling evidence’ requirement for an extension of a family reunification order was not (and is not) a requirement that needed to be satisfied when making an initial or original family reunification order. That is, for the making of an original or initial family reunification order, there is no equivalent provision to s 294A(1)(a) of the Act.
The Secretary submitted that it is plain from what the magistrate said during the hearing that he intended to give judgment on 13 September 2018 if a care by Secretary order was to be made. On the other hand, if he wanted to make a family reunification order for the next 12 months then, in order to avoid the operation of s 294A(1)(a) of the Act, the magistrate had to make the order after 29 September 2018. This he did on 3 October 2018.
Counsel for the first respondent submitted that I should not find that the magistrate had engaged in some artifice for the purpose of avoiding a provision of the Act. He submitted that the Act gave the magistrate wide powers and discretions to conduct the proceeding as he thought fit in the best interests of the child.
There is obvious force in the Secretary’s submissions. Generally speaking, a Children’s Court magistrate should not conduct protection proceedings, or take a step in such proceedings, with a view to avoiding the operation of a section of the Act. I say ‘generally speaking’ only because, in the unique, varied and difficult circumstances that are capable of arising given all of the myriad of differing fact situations in relation to families and children, I cannot exclude the possibility of a rare or exceptional case where the paramount interests of the child might require some unusual or unorthodox procedural step to be taken by a Children’s Court magistrate. The present case, however, is not such a case.
The resolution of this appeal
The Children’s Court is a busy specialist jurisdiction that deals day in day out with cases involving the wellbeing of children. It is frequently called upon to resolve matters of great complexity where there may be significant competing considerations that must be taken into account in the resolution of its proceedings. Accordingly, in an appeal of the present kind, the views of the magistrate who has conducted a lengthy and detailed proceeding must be accorded considerable weight. There is no occasion for this Court to substitute its view for the view of the magistrate in a case where reasonable minds might legitimately disagree.
That said, and giving all due weight to the magistrate’s decision in the present case, the result he arrived at was, with respect, simply not open. The decision was plainly wrong and wholly erroneous. When all of the circumstances and all of the evidence are properly considered, the only result that was open to the magistrate was to accede to the Secretary’s application, and make a care by Secretary order.[19] The evidence and the findings by the magistrate that the parents know how the child’s serious injuries occurred but refused to divulge this information required a conclusion that the best interests of the child mandated the making of a care by Secretary order.
[19]Cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
The submission by counsel for the first respondent that the mother should now be given a chance to try to ‘properly engage with services’ before a care by Secretary order is made must be rejected. First, the Act contains no provision mandating such an approach. Secondly, the circumstances of this case (which include the parents not acknowledging the circumstances of abuse known to them) makes any such conclusion not open. While the child’s mother continues to refuse to engage about the abuse perpetrated on her son, it is not possible to see how there can be any family reunification. The position might be different in the future if one or either parent engages frankly with authorities on the issue, and shows real willingness to address whatever it was that brought about the abuse of the child.
The reasons of the magistrate go some way to showing how the magistrate arrived at a decision which was plainly not open to him. In his reasons, the magistrate said, ‘the young mother has great potential to become properly skilled in parenting so that this tragedy never happens again’. Two observations may be made.
First, there was no evidence that justified any conclusion that the first respondent had ‘great potential’ to become properly skilled in parenting — unless the magistrate was stating no more than the obvious that there may be great potential in every young person.
Secondly, the notion that ‘this tragedy’ happened because the mother was not ‘properly skilled in parenting’ belies the real cause of the appalling abuse (found to be horrific by the magistrate) in this case.
Similarly, the magistrate’s statement in his reasons that he was ‘not satisfied that the child should be denied the possibility of being in a parent’s care due to the mother not be[ing] sufficiently skilled up at the start of the child’s life’ belies a true understanding of the evidence called and tendered at the hearing, and the case that was actually conducted before the magistrate.
The case before the magistrate concerned the question of what type of protection order should have been made by the Children’s Court, in all the circumstances of the case, having regard to the paramountcy of the best interests of the child. That question had to be answered on a background of the mother’s refusal to divulge information about her son’s abuse and injuries, notwithstanding the obvious, blatant and horrific abuse shown to have been perpetrated on the child, and the knowledge the magistrate found (correctly) that the mother possessed about those matters.
In his reasons, the magistrate said that he had ‘not been persuaded that the DHHS’ approach [was] in the best interests of the baby’. By this statement, I take the magistrate to mean that the care by Secretary order sought by the Secretary was not in the best interests of the child. Then, without giving any particulars, his Honour said that ‘decisions that were made after the birth of the baby and the level of scrutiny applied to the family after the birth were in hindsight flawed’. So much is obvious, given the severity of the child’s injuries upon presentation to the hospital in September 2017.
If, however, the magistrate intended to convey some criticism of the Secretary or members of the Department, two points should immediately be made. First, the magistrate did not identify the decisions he found to be ‘flawed’. Secondly, it is difficult to see how any flaw in the approach of the Secretary or the Department might impact upon the decision the magistrate had to make at the time of judgment, namely: what protection order should, in the best interests of the child, be made in a case where the parents’ preferred position appeared to be that the obvious abuse of their child should be covered up?
The best interests of the child included protecting the child’s life, protecting the child from harm, and putting in place a regime that would enable planning for the child’s future (including his long-term future) and care. That the best interests of the child include issues of planning and the desirability of continuity and permanency in care is borne out by an examination of the scheme of the Act, including ss 10(3)(f) and (fa) and 276A(2)(d). Making a family reunification order in the circumstances of this case was not open because such an order could not, on any view, be regarded as having been made in the child’s best interests where his mother (and more generally his parents) refused to acknowledge significant past wrongdoing in relation to the child.
It follows that the appeal must be allowed. Moreover, as the only order that was open to the magistrate to make was a care by Secretary order, there is no need to remit this proceeding to the Children’s Court. This Court can, should and will make the only order that was open to the magistrate at first instance — a care by Secretary order.
Other arguments
The Secretary submitted that before a family reunification order can be made, the Court must be satisfied that there is a reasonable possibility of the child being reunified into the care of a parent during the period of the order. The Act contains no such express requirement, although s 276A(2)(d)(ii) provides that the Court must have regard to advice from the Secretary as to:
The benefits to the child of making a care by Secretary order to facilitate alternate arrangements for the permanent care of the child if … there appears to be no realistic prospect of the child being able to safely return permanently to the care of the child’s parent within a further period of 12 months.
Plainly, the possibility of the child being reunified (or the lack of a reasonable possibility of such reunification) during the period of a potential family reunification order is a relevant matter that the Children’s Court may take into account in determining whether such an order should be made. Equally plainly, if there is no reasonable possibility of a child being reunified into the care of a parent during the period of the order then this is a factor that has the capacity to tell against the making of such an order.
That said, however, the requirement that the best interests of the child be paramount[20] means that there can be no invariable rule. A case may exist where there is no reasonable possibility of a child being reunified into the care of a parent during the period of a family reunification order, but it is still in the best interests of the child to make such an order. The subject matter of these applications is too important for them to be the subject of some strict rule not found in the text of the Act.[21] All that needs to be said in relation to this issue in the present case is that the making of the family reunification order in circumstances where there was no reasonable possibility of the child being reunified into the care of a parent during the period of the order was yet another basis for concluding that, in all the circumstances of the case, it was not open to the magistrate to make such an order.
[20]See s 10 of the Act.
[21]Cf Purcell v RM [2004] VSC 14 [22] (Gillard J); Department of Human Services v DR [2013] VSC 579 [47] (Elliott J).
Having regard to the conclusions I have already expressed, it is not necessary for me to deal in detail with the Secretary’s complaints about the magistrate’s reasons. The reasons are erroneous. While they display a path of reasoning, they are inadequate in the circumstances of this case because they do not make any real reference to the matters the Court was required to have regard to under the Act, and more particularly under s 276A of the Act. Moreover, the failure to refer in the reasons to the desirability or need for continuity of care and future planning in relation to the child is, with respect, less than ideal.
While in many cases it may not be necessary to make express reference to everything that a court is required to have regard to, the conclusion reached by the magistrate in this case obliged him to explain that he had had regard to the advice from the Secretary to which he was required to have regard, whether he had accepted or rejected the advice, his reasons for accepting or rejecting the advice, and how the acceptance or rejection of the advice had impacted on his ultimate decision. His Honour did not engage in this exercise.
Conclusion
The appeal will be allowed. The family reunification order made in the Children’s Court on 3 October 2018 will be set aside, and in lieu thereof it will be ordered that the child be placed on a care by Secretary order.
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