DHHS v Children's Court of Victoria

[2020] VSC 520

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:

1. 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. 

1. 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

1. The background facts set out in the submissions of the DHHS were not in dispute. 

1. 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…