DHHS v Children's Court of Victoria
[2020] VSC 520
•19 August 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 03084
| SECRETARY TO THE DEPARTMENT OF HEALTH & HUMAN SERVICES | Plaintiff |
| v | |
| CHILDREN’S COURT OF VICTORIA AND OTHERS | Defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 July 2020 |
DATE OF JUDGMENT: | 19 August 2020 |
CASE MAY BE CITED AS: | DHHS v Children’s Court of Victoria & Ors |
MEDIUM NEUTRAL CITATION: | [2020] VSC 520 |
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JUDICIAL REVIEW — Urgent application for review of decision of the Children’s Court —Court below struck out application for extension of care by secretary order — Decision made at mention hearing without sworn evidence — Disagreement between interested parties as to best interests of child — Effect of decision would leave child without legal guardian — Whether denial of procedural fairness — Whether decision made without power — Children, Youth and Families Act 2005 ss 8, 10, 215 — Secretary, Department of Human Services v Sanding (2011) 36 VR 221; Secretary to the Department of Human Services v Children’s Court of Victoria [2012] VSC 422.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr I Freckelton QC Dr A McBeth | Department of Health and Human Services |
| For the First defendant | No appearance | |
| For the Second defendants | Mr I Hill QC | Dowling McGregor Pty Ltd |
| For the Third defendant | In person | |
| For the Fourth defendant | In person | |
| For the Fifth defendant | No appearance | |
| For the Sixth defendant | Ms M Stead | Isabelle Harrison, solicitor |
HER HONOUR:
On 29 July 2020, an urgent application filed by the Secretary to the Department of Health & Human Services (‘DHHS’) on 27 July 2020 was heard in the Practice Court. The DHHS sought, inter alia, orders in the nature of certiorari quashing an order of the Children’s Court of Victoria dated 21 July 2020 in relation to a child aged seven years.[1] The Court informed the parties that its decision would be communicated to them the following day.
[1]In the interests of anonymity, the names of the child, his family members, the various foster carers, and the independent children’s lawyer have been omitted from these reasons.
On 30 July 2020, the Court informed the parties that it considered that the decision of the Children’s Court made 21 July 2020 should be quashed on the grounds of a failure to afford procedural fairness to the parties and the decision not being in the best interests of the child. The reasons for the Court’s decision are now provided to the parties.
Background
The background facts set out in the submissions of the DHHS were not in dispute.
The child was born in December 2012. He has two half siblings on his maternal side, a brother aged 15 and a sister aged 12. He has another brother on his paternal side, with whom he has had no contact since about April 2016. The child’s maternal siblings are both subject to permanent care orders and reside with foster carers (‘the siblings’ foster carers’). The child’s parents died in 2016 and 2017 respectively.
The child has a number of health conditions, including autism spectrum disorder, foetal alcohol spectrum disorder, as well as various physical issues. He is Aboriginal on his paternal side.
Throughout his life, the child has been the subject of various custody orders and case plans.
On 21 January 2013, when the child was approximately two months of age, a protection application was issued with respect to him due to concerns about parental substance misuse. On 9 September 2013, the application was found proven in relation to physical injury, emotional or psychological harm, and developmental harm under ss 162(1)(c), (e) and (f) of the Children, Youth and Families Act 2005 (‘the Act’). A custody to secretary order, as it was then known, was made by the Children’s Court for a period of 12 months until 8 September 2014.
On 27 September 2013, the child was placed in the care of foster carers commissioned by Anglicare (‘the foster carers’). He has remained living with the foster carers since that time. The child refers to the foster carers as ‘Mum and Dad’, and their four biological children as his siblings.
As at September 2013, the case plan for the child was for reunification with his parents. In mid-December 2013, a non-reunification plan was endorsed. Since that time, the case plan has been reviewed annually.
On 1 September 2014, the DHHS made an application to the Children’s Court to extend the custody to secretary order. The extension of 12 months was granted on 29 September 2014. A care by secretary order was extended for a further 12 months on 29 September 2015. A further application for extension for a period of two years was granted on 7 September 2016.
On 5 August 2016, a case plan meeting with the Victorian Aboriginal Child Care Agency (‘VACCA’), Anglicare and an early intervention specialist took place. It was determined that the child’s case plan should change to placing him with his siblings, who were in the care of the siblings’ foster carers. The foster carers sought an internal review of that case plan on 12 August 2016. On 4 October 2016, the outcome of the review was provided to the parties, it affirmed the case plan for the child to be transitioned to the care of the siblings’ foster carers.
The DHHS sought further advice from a child psychiatrist. He recommended that the child remain in the care of the foster carers, but raised concerns that ‘permanent care with [the foster carers] will prove mutually exclusive to an ever growing closeness between [the child] and [his maternal siblings] because of the gulf of trust and friendship that has opened up between [the foster carers] and [the siblings’ foster carers].’ On 6 November 2017, a new case plan was endorsed with the child to remain in the care of the foster carers with the intention that he have increased contact with his siblings.
On 10 November 2017, the child’s paternal grandmother advised of her disagreement with the plan endorsed on 6 November 2017.
On 30 August 2018, the DHHS filed a further application to extend the care by secretary order. It is this application that gave rise to the application presently before this Court.
On 9 August 2019, the November 2017 case plan was confirmed. The DHHS endorsed and progressed an application for a permanent care order to the foster carers. Because of the child’s Aboriginality, VACCA commenced a permanent care assessment.
In September 2019, the child’s paternal grandmother and the siblings’ foster carers sought an internal review of the child’s case plan. On 17 July 2020, the internal reviewer found that he should be transitioned to the care of the siblings’ foster carers. The reviewer cited the ongoing conflict between the foster carers and the siblings’ foster carers, as well as ongoing conflict between the foster parents, the child’s paternal grandmother and the child’s paternal grandfather as influencing her decision. She also considered it preferable to place the child with his siblings in an environment where his cultural needs, including contact with his paternal family, could be met.
The proceeding below
The DHHS’s application for extension of the care by secretary order first came before the Children’s Court on 30 October 2018 before Judge Chambers, President of the Children’s Court. Judge Chambers ordered that the child’s paternal grandparents, the foster carers, the siblings’ foster carers and the child’s maternal grandmother each be joined as parties. An independent children’s lawyer was also appointed.
The proceeding next returned before Magistrate MacPherson on 18 December 2018. Magistrate MacPherson was the docketed Magistrate for the proceeding. At the 18 December 2018 hearing, the parties made submissions to the Magistrate, and the application was adjourned to 9 April 2019 to allow the DHHS to consult professionals as to the suitability of overnight contact between the child and his siblings.
Further returns of the hearing occurred on 9 April 2019, 16 July 2019, 10 September 2019, 3 December 2019. The DHHS’s application was adjourned on each occasion. The siblings’ foster carers withdrew from the proceeding in or around April 2019.
The proceeding was listed for a mention on 9 June 2020. At that hearing, the matter was adjourned for a further mention on 21 July 2020 for ‘the result of DHHS case plan [to be known], DHHS to consider family court proceedings and an assessment of contact for [the child’s paternal brother].’ It was also expected that the DHHS would provide updated subpoena material at the further mention.
On 17 July 2020, solicitors for the foster carers sent an email to the Children’s Court Registry seeking that the mention be listed for a Webex hearing on 21 July 2020. The email was copied to the Child Protection Litigation Office of the DHHS as well as the independent children’s lawyer. The listing was confirmed by responsive email from the Registry on 20 July 2020. The responsive email was not copied to the DHHS. Neither of the child’s paternal grandparents received either email. They were advised of the hearing on the afternoon of 20 July 2020 by a representative of the DHHS.
The 21 July 2020 hearing took place before Magistrate MacPherson, via Webex. Ms Buchanan of counsel appeared for the DHHS; Ms Younis, solicitor, appeared for the foster carers; the independent children’s lawyer, the child’s maternal grandmother and his paternal grandfather all appeared in person.
The hearing lasted for approximately 40 minutes. At the hearing, Ms Younis made an oral application for orders that the foster carers be found to be parents of the child for the purposes of s 3 of the Act. That application was resisted by the DHHS as a design to subvert the case plan. The Magistrate observed that the child had been in the middle of conflict between the various interested parties and that the earlier case plan that provided for shared contact had not worked. An application before the Supreme Court, invoking its parens patriae jurisdiction, was discussed. An undertaking was requested of the DHHS not to remove the child from the foster carers until that application was resolved. The DHHS refused to give any such undertaking, but Ms Buchanan confirmed that, if the foster carers made their application in a timely manner, the case plan would not be implemented pending the outcome.
The Magistrate asked Ms Buchanan why she should not strike out the DHHS’s application and leave the child in the care of the foster carers. Ms Buchanan resisted any such course, submitting that such a decision could not be made in the absence of any evidence. Magistrate MacPherson remarked that ‘we’re going to the Supreme Court anyway’ and that because the DHHS proposed to take the child away from the foster carers ‘there’s no procedural fairness there.’ An application to strike out the application was supported by Ms Younis, who submitted that the Magistrate had ‘very, very good knowledge of this case’. The independent children’s lawyer and the child’s maternal grandmother also supported striking out the application. The child’s paternal grandfather stated his support for the DHHS’s position.
Ms Buchanan sought orders for a readiness hearing before a different magistrate, and expressed her concern that Magistrate MacPherson had prejudged the matter without hearing any evidence. The Magistrate refused to make those orders.
In her reasons for decision, Magistrate MacPherson gave a brief history of the litigation in relation to the child. She was critical of the DHHS’s conduct of the matter. She remarked that ‘the whole thing has been absolutely appalling’, ’God knows why it took that long for the case plan – the appeal to be reached’ and ‘it would be cruel and unusual punishment for this child to be taken out of the care of [the foster carers] at this point’.
Magistrate MacPherson then noted the refusal of the DHHS to provide an undertaking not to remove the child from the foster carers, before concluding:
Ms Buchanan has asked me back, … to disqualify myself, because I have pre-judged this issue. I don’t believe I have pre-judged this issue. This case has been docketed before me for two years and I am very familiar with the effect and it seems to me that if I don’t act now to secure this little boy’s safety, he will be traumatised by removal and the Department will not give me an undertaking that he won’t be removed until the matter goes to the Supreme Court.
So I’m sorry that this decision will upset some of the parties, but I believe that I have to act in the best interests of this little boy. I don’t believe the Department have acted in his best interests. I feel very strongly about that, so I strikeout the application.
The outcome of the hearing was a discharge of the care by secretary order. The result of that decision is that there was no protection order in place in relation to the child, and no person with guardianship or parental responsibility.
Errors alleged by the DHHS
The DHHS sought an order in the nature of certiorari to quash Magistrate MacPherson’s decision to strike out its application. It submitted that the Magistrate exceeded or misapprehended the limits of her jurisdiction by failing to afford procedural fairness to the parties, as well as failing to observe the statutory requirements of the exercise of her powers under the Act.
The Court accepts that the DHHS has standing to seek judicial review of the decision. The Secretary to the DHHS has statutory responsibility for the wellbeing of children in need of protection. She has a special interest in challenging the lawfulness of the decision as she will gain some advantage if her application succeeds or some disadvantage if it fails.[2]
DHHS’s submissions
[2]See Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493, 530 (Gibbs CJ); Maguire v Victoria [2020] VSCA 172, [63] (Ferguson CJ, Kyrou and Niall JJA).
The DHHS submitted that it was denied procedural fairness because the Magistrate struck out the application on her own motion and without hearing any sworn evidence. She did so at a mention hearing, en route to an evidence hearing, and over the objection of counsel for the DHHS. When Magistrate MacPherson foreshadowed that she might strike out the application at the hearing, counsel objected on the specific basis that doing so without a hearing would constitute a denial of procedural fairness.
The DHHS submitted that the Magistrate’s primary reason for striking out the application was that, because the DHHS refused to give an undertaking not to remove the child from the foster carers pending the outcome of Supreme Court proceedings, it was urgent and in his best interests for her to act immediately. It says that this was not a case in which the child’s best interests all pointed in one direction, there are complex issues which needed to be tested by evidence in the usual course. There are several interested parties, each with different views about the child’s best interests. Those views could only be properly assessed by permitting sworn evidence to be presented and tested by each party.
It submitted that the result of the decision, to leave the child with no legal guardian, is plainly not in his best interests. Had the Magistrate afforded procedural fairness to the parties by following the proper course, she would have been able to make an informed decision in the best interests of the child in accordance with the relevant statutory scheme.
The DHHS further submitted that the Magistrate’s decision was contrary to the best interests principles contained in s 10 of the Act. It said that, due to the mandatory nature of the best interests principles, where the Children’s Court fails to give adequate consideration to them, a decision will be beyond the statutory limits of its jurisdiction. It was submitted that it is evident from the transcript of the hearing before the Magistrate, as well as the practical outcome of her decision, that she did not turn her mind to the situation that would exist after striking out the application. That failure amounted to a decision that was contrary to s 10 of the Act, and was therefore beyond power.
The foster carers’ submissions
The foster carers submitted that the Court should be cautious to interfere with a decision of the Children’s Court concerning the procedures to be followed in the exercise of its specialist jurisdiction. They say that s 215 of the Act gives the Children’s Court a wide discretion to conduct proceedings in an informal manner and permits it to inform itself as it sees fit, notwithstanding any rule of evidence to the contrary.[3]
[3]Citing Secretary, Department of Human Services v Sanding (2011) 36 VR 221 (‘Sanding’).
They submitted that the decision of the Magistrate was consistent with the best interests of the child, in accordance with s 10 of the Act. They say that the child had known no other world and saw the foster carers as his parents. The Magistrate had access to all of the relevant professional reports and, they say, correctly found that to remove the child from their care would amount to ‘cruel and unusual punishment’. In light of those facts, and the DHHS’s refusal to make an undertaking not to remove him from their care, the foster carers submit that it was open for the Court to adopt the procedure it did, and was not in breach of any procedural rights of any party.
Finally, they added that the dispute between the parties is in reality a custody dispute. Proceedings have been commenced in the Federal Circuit Court to that end.
The independent children’s lawyer’s submissions
The independent children’s lawyer’s submissions were broadly in concert with those of the foster carers. She said that where the DHHS failed to provide the requested undertaking to the Court, striking out the application was the only way in which she could fulfil the duty to protect the child from harm. The course advocated for by the DHHS, adjourning for a procedural hearing, would thwart that purpose.
The paternal grandparents’ submissions
The child’s paternal grandparents both appeared in person at the 29 June 2020 hearing. They both confirmed their position in support of the DHHS.
The maternal grandmother’s submissions
The child’s maternal grandmother did not appear at the hearing, and did not otherwise file any submissions. The Court is unaware of whether her position had changed from that stated in the hearing before the Magistrate on 21 July 2020.
Applicable principles and legislation
The Children, Youth and Families Act 2005
The Children’s Court of Victoria is presently administered pursuant to the Children, Youth and Families Act 2005. The Act also regulates, inter alia, the protection of children more broadly, and sets out the role and responsibilities of the DHHS in relation thereto.
Part 1.2 of the Act prescribes broad principles which guide the Children’s Court and other decision makers under the Act.[4] Section 8 of the Act prescribes that decision makers must have regard to those principles in making any decision or taking any action under the Act.
[4]The decision making principles were recently discussed in some detail by Incerti J in AA v Secretary to the Department of Human Services [2020] VSC 400, [75]–[78].
Pursuant to s 10, the paramount guiding principle is the best interests of the child. Specifically, s 10(2) provides:
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.
The Act prescribes 18 further matters to which a decision maker must have regard, as follows:
(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;
(g) the desirability of making decisions as expeditiously as possible and the possible harmful effect of delay in making a decision or taking an action;
(h) 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;
(i) 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;
(j) 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;
(k) 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;
(l) contact arrangements between the child and the child's parents, siblings, family members and other persons significant to the child;
(m) the child's social, individual and cultural identity and religious faith (if any) and the child's age, maturity, sex and sexual identity;
(n) 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;
(o) 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;
(p) 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; and
(r) any other relevant consideration.
The Children’s Court is usually constituted by the President or a Magistrate with the appropriate expertise.[5] The jurisdiction exercised by the Court is specialist in nature. The rules and powers of the Children’s Court are prescribed by the Act in a manner that reflects its specialist work. Pursuant to s 215 of the Act, proceedings before the Court are to be conducted in an informal manner, without regard to legal forms. Section 215(1)(d) prescribes that the Court ‘may inform itself on a matter in such manner as it thinks fit, despite any rules of evidence to the contrary.’
[5]Children, Youth and Families Act 2005 (Vic) ss 504(7), 507(2).
Section 530 of the Act places a limit upon the power of the Children’s Court to adjourn proceedings before it. Specifically, the Court must not grant an adjournment unless it is of the opinion that it is in the best interests of the child to do so, or there is some other cogent or substantial reason to do so.[6]
[6]Ibid s 530(10).
Part 4.9 of the Act prescribes the various protection orders that fall within the jurisdiction of the Children’s Court. Section 275(d) of the Act specifically grants jurisdiction to make a care by secretary order. Such an order grants sole custody of a child to the Secretary of the DHHS, and may include conditions in the best interests of the child.[7] The purpose of a custody to secretary order is protective, the Court will grant such an order where a child is in need of protection, or where there is such a substantial and irreconcilable difference between a child and their custodian that the care and control of that child is likely to be seriously disrupted.[8] Where a care by secretary order is granted, the DHHS is able to place the child in such care arrangements as are within the child’s best interests.[9] The Court may, upon application, revoke or extend a care by secretary order where it is in the best interests of the child to do so.
Procedural fairness
[7]Ibid s 289.
[8]Ibid s 274.
[9]Ibid ss 173–4.
It is a fundamental rule of natural justice that the parties to a proceeding must enjoy procedural fairness before a decision maker. At its most basic level, procedural fairness requires that all parties to a proceeding have a reasonable opportunity of presenting their case. [10] It is also well settled that, generally, the failure by an inferior Court to afford procedural fairness to the litigants before it constitutes an action beyond that Court’s jurisdiction.[11]
[10]Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (‘Ex Parte Lam’), 36 [114] (Hayne J).
[11]See, eg, Craig v South Australia (1995) 184 CLR 163, 175–6 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 205 [75] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ).
The content of procedural fairness requirements will vary according to the circumstances of any given case. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam, McHugh and Gummow JJ observed:
It often has been remarked in this Court that the particular requirements of compliance with the rules of natural justice will depend upon the circumstances. Different procedures may be required, even of the same repository of power, from one situation to the next… Further, the expectations of a particular party as to the exercise of the power in question may be relevant to the way in which the repository of the power is to exercise it in the particular case.[12]
[12]Ex Parte Lam (n 10), 16 [48].
The concern of procedural fairness is to avoid ‘practical injustice’.[13] Gageler and Gordon JJ recently remarked, in the context of a case involving administrative decision making and refugee status:
The concern of procedural fairness … is with procedures rather than with outcomes. It follows that a failure on the part of an assessor or reviewer to give the opportunity to be heard which a reasonable assessor or reviewer ought fairly to give in the totality of the circumstances constitutes, without more, a denial of procedural fairness ...[14]
The party alleging a denial of procedural fairness must show that they lost an opportunity to put information or argument to the decision maker, or that they otherwise suffered detriment as a result of the decision maker’s course of action.
[13]Ibid 14 [37] (Gleeson CJ).
[14]Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, 341 [55].
In the context of litigation concerning the welfare of a child, the Court must balance the constraints placed upon its jurisdiction by the rules of natural justice with the requirement of s 10 of the Act and the procedural flexibility afforded by s 215. That balance has been the subject of much authority in this and other Australian courts. The parties referred in particular to two decisions of this Court that they submitted were instructive.
In Secretary to the Department of Human Services v Sanding (‘Sanding’),[15] Bell J dismissed an appeal by the Secretary to the DHHS from a decision of the Children’s Court granting an application to revoke a care by secretary order following a ‘submissions contest’. The relevant proceeding concerned the care of four Aboriginal children whom the DHHS had placed in non-aboriginal out of home care, following difficulties when cared for by their maternal grandmother. The children’s mother was still alive, and many of the difficulties associated with their home life were a result of the mother’s drug addiction and disharmony in the household.
[15]Sanding (n 3).
The DHHS alleged that it had been denied procedural fairness by the Magistrate’s failure to adopt the usual practice of hearing written and unwritten evidence before making his determination.
Justice Bell gave detailed consideration to the relationship between the rules of natural justice and the wide procedural powers afforded to specialist courts, such as the Children’s Court. His Honour observed that ‘these powers cannot be used to override the rules of natural justice which would otherwise apply’,[16] but accepted that a facilitative approach was necessary to adapting the requirements of procedural fairness to the nature and functions of the Children’s Court’s jurisdiction.[17] Referring, inter alia, to the decision of the High Court in J v Lieschke,[18] his Honour observed that ‘the rules of natural justice do not prevent a court when exercising a … jurisdiction in the best interests of the child, from exercising its discretion to adopt fair procedures which will suit that purpose’.[19]
[16]Ibid 249 [128].
[17]Ibid 250 [130].
[18](1987) 162 CLR 447.
[19]Sanding (n 3) 252 [137].
His Honour concluded that, in the circumstances, there had been no denial of procedural fairness to the DHHS that would impeach the Magistrate’s decision. His Honour noted that the material facts before the Magistrate were not in dispute and the children, their mother, their father and their grandmother all supported revocation of the care by secretary order and continued residence with the children’s grandmother. Furthermore, the greatest risk to the children, through their mother’s drug use, had dissipated with her offer to leave the grandmother’s residence. Although he accepted that both adjourning and not adjourning the proceeding were courses ‘within the zone of’ the Magistrate’s discretion’, Bell J concluded:
If those facts were in serious dispute or needed full investigation, if placement in the grandmother’s home would not be in the children’s best interests even with the mother not living there or if there were other viable options which could have been urgently adopted, then the submissions contest procedure, and making the revocation order, might not have been legally defensible. But in the circumstances of the case, in my view the magistrate did not err in law in adopting the procedure and in making the orders which he did. The magistrate did not breach the rules of natural justice by adopting that procedure.[20]
[20]Ibid 276 [259].
In Secretary to the Department of Human Services v Children’s Court of Victoria,[21] John Dixon J also considered an appeal from a decision of the Children’s Court made at a submissions contest. The proceeding concerned a child of nine years, who lived in foster care subject to a care by secretary order. The decision subject to the appeal was to vary the conditions of the care by secretary order to grant access to the child’s first cousin and paternal grandmother. Unlike Sanding, there were ongoing disputes between the parties regarding the best interests of the child, and the Secretary had intended to call witnesses to give sworn evidence. Despite objection from the Secretary on grounds of procedural fairness, the Magistrate ruled against her application that evidence be taken.
[21][2012] VSC 422.
Justice Dixon allowed the appeal and quashed the variation order. His Honour considered and approved Bell J’s observations in Sanding that ‘the particular content and application of the rules of natural justice will reflect the nature of that jurisdiction and influence the exercise of the court’s procedural discretion.’ His Honour observed:
While the applicable notions of natural justice and procedural fairness afforded to the parties may be influenced by the overriding consideration of the best interests of the child if the purposes for which the jurisdiction is conferred may be frustrated, the parties must still be afforded procedural fairness. Any limitation on procedural fairness considered appropriate in the circumstances of a particular case ought to be transparently balanced against the anticipated risk of frustration of the purposes for which the jurisdiction is conferred, particularly where, as in the case of this Act, the legislature has, at some length, articulated the best interests principle that is to guide the court’s decisions.[22]
[22]Ibid [21].
His Honour specifically distinguished the case before him from the earlier decisions of Grandell v Hartrick,[23] Department of Human Services v Ross,[24] and Purcell v RM[25] on the basis that, unlike those cases, the relief granted by the Magistrate was not interim in nature or granted on an urgent basis. Dixon J also distinguished Sanding on the basis that the information before the Magistrate in that case provided a proper basis upon which to determine the best interests of the children. By contrast, counsel for the DHHS had raised several grounds for challenging the submissions made by the parties before the Magistrate at the submissions contest. Dixon J considered that in depriving the Secretary the opportunity to call evidence on those issues, the Magistrate had fallen foul of the rules of natural justice. His Honour concluded:
In my view, it is not possible to say that the opportunity of which the Secretary was deprived could not have made a difference in the proper disposition of the application in accordance with the statutory scheme. Proceeding by evidence rather than upon a submissions hearing in circumstances that were not considered urgent would not have frustrated the purposes or objects of the Act. To the contrary, it is likely that the magistrate would have had a proper basis to consider and determine the application in accordance with the statutory scheme.[26]
[23](Supreme Court of Victoria, Beach J, 2 August 1994).
[24][2003] VSC 172.
[25] [2004] VSC 14.
[26]Secretary to the Department of Human Services v Children’s Court of Victoria (n 21), [29].
Consideration
In exercising jurisdiction by way of judicial review or appeal, it is well accepted that the superior court should give weight to the decision of a specialist Court or tribunal. As observed by Stephen J in Spurling v Development Underwriting (Vic) Pty Ltd, this deference is in recognition of the ‘special expertise and experience which the legislation plainly intends them to employ.’[27] That does not, however, render the decision of a specialist tribunal unimpeachable, particularly where the errors arise from matters that do not fall uniquely within their specialist expertise such as the requirements of procedural fairness.[28]
[27][1973] VR 1, 11.
[28]Secretary to the Department of Human Services v Children’s Court of Victoria (n 21), [32].
The child has been the subject of a care by secretary order since he was nine months of age, and has had numerous different case plans. The Court has no doubt that all involved with the care and custody of the child have his best interests as their utmost concern. Unfortunately, there is disagreement amongst them as to what are those best interests. It is not the role of this Court to determine that question. Rather, this Court’s role is to consider the procedure adopted by the Magistrate at the hearing on 21 July 2020 and ask whether she stepped outside the bounds of her decision making power by failing to afford the parties procedural fairness, or failing to place paramount the best interests of the child.
As observed, the requirements of procedural fairness must be adapted to reflect the procedural flexibility granted to the Children’s Court by s 215 of the Act. Although this may mean that the rules of natural justice are not given their full application, those rules cannot be done away with altogether. In certain cases it may be necessary for the Children’s Court to proceed without sworn evidence when granting interim relief, or relief on an urgent basis. In Sanding, Bell J upheld the Court’s decision made in the absence of sworn evidence in circumstances where there was no dispute as to the material facts, and no dispute as to the best interests of the children in that case. Although not dispositive, it is also notable that the DHHS did not object to the course adopted by the Magistrate at the hearing in that case.
The decision of Magistrate MacPherson on 21 July 2020 was neither interim nor urgent in nature. There was clear disagreement as to the best interests of the child, as reflected in the varying case plans and applications for reviews thereof. The Magistrate struck out the DHHS’s application on her own volition, over the objection of counsel for the DHHS. She did so seemingly upon the basis that the DHHS would not provide an undertaking not to remove the child from the foster parents. This was so notwithstanding the assurance given by counsel that the DHHS would not implement the new case plan pending the outcome of any application to the Supreme Court, provided it was made in a timely manner. The failure to give an undertaking is not itself a proper basis upon which to strike out the extension application and did not give rise to any meaningful urgency.
It is not possible to say whether the opportunity to present and challenge evidence before the Children’s Court would not have altered the Magistrate’s decision. It is not necessary to do so. The Court acknowledges that the Magistrate was the docketed Magistrate in the proceeding, which came before her some eight times. Nonetheless, had the matter proceeded to an evidence hearing, the Magistrate would have been able to form a considered view as to the best interests of the child, determined upon a proper basis and in the knowledge of all relevant matters. The denial of procedural fairness to the DHHS precluded that course and impeached the decision of the Magistrate as having been made subject to jurisdictional error.
It was an unfortunate result of the Magistrate’s decision that the child was left without any legal guardian. Although he remained in the care of the foster carers, the decision left the child with no person authorised to make decisions on his behalf with regard to, for example, medical care. This is of particular concern in circumstances where the child has ongoing medical needs. Plainly, that state of affairs is not in the child’s best interests. Although the Magistrate was clearly concerned with the best interests of the child, had she placed those interests paramount, as she is required to do pursuant to s 10 of the Act, the Magistrate would not have struck out the DHHS’s extension application with no incidental orders as to the child’s care. The requirement in s 10 being a precondition to the exercise of the Magistrate’s statutory power, it was beyond power to take the course that she did.
Accordingly, the Court ordered that the decision of the Magistrate on 21 July 2020 to strike out the DHHS’s application out be quashed as having been made with a want of procedural fairness, alternatively, without regard to the best interests of the child as required by s 10 of the Act.
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