JKL (a pseudonym) v Secretary, Department of Families, Fairness and Housing
[2024] VSC 645
•23 October 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 01457
| JKL (a pseudonym) | Applicant |
| v | |
| SECRETARY, DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING & ORS (according to the attached Schedule) | Respondents |
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JUDGE: | K Judd J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 October 2024 |
DATE OF JUDGMENT: | 23 October 2024 |
CASE MAY BE CITED AS: | JKL (a pseudonym) v Secretary, Department of Families, Fairness and Housing |
MEDIUM NEUTRAL CITATION: | [2024] VSC 645 |
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JUDICIAL REVIEW – Appeal from Children’s Court – Permanent Care Order – Failure to consider mandatory principles – Misconstruction of ‘parent’ – Error of law established – Appeal granted – Proceeding remitted for reconsideration and further determination – Children, Youth and Families Act 2005 ss 3, 8, 10(3), 239, 319 – AA v Secretary to Dept of Health and Human Services (2020) 61 VR 436 – LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610.
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APPEARANCES: | Counsel | Solicitors |
| Applicant | Dr A McBeth | TP Legal and Associates |
| First Respondent | JM Davidson | Department of Families, Fairness and Housing |
| Second and Third Respondent | J Cohen | |
| Fourth Respondent | No appearance |
HER HONOUR:
Introduction
This is an appeal on a question of law, pursuant to s 329 of the Children, Youth and Families Act 2005 (Vic) (the Act), from a decision of the Children’s Court of Victoria made on 1 March 2024, placing VWX in the permanent care of the second and third respondents (the decision). VWX is four years old.
The appellant is the mother of VWX (the mother). She is also the mother of an older daughter, who is now over 18 (the older daughter), and a younger daughter, aged 2 (the younger daughter), both of whom live with the mother and have no current involvement with child protection. The mother opposed the Children’s Court making a Permanent Care Order (PCO) and instead sought that VWX be placed with her on a Family Preservation Order.
The second respondent, MNO, and third respondent, PQR, were the foster parents of VWX (collectively, the carers) and supported the making of a PCO to themselves.
The fourth respondent is the father of VWX (the father). He was incarcerated at the time of the Children’s Court hearing. The father did not oppose the making of the PCO, but made submissions seeking contact with VWX. The father has taken no active role in the appeal to this Court.
The evidence in this matter consisted of the affidavits exhibiting material before the Children’s Court made by Aisha Kaukau, solicitor for the appellant, on 29 July 2024, and Sarah Masters, solicitor for the first respondent, on 6 August 2024, together with the transcript from the hearing in the Children’s Court.
It is not in dispute that VWX was removed from the mother and stepfather’s care on 10 March 2020 when she was 8 weeks of age.
The involvement of the first respondent, the Department of Families, Fairness and Housing (DFFH) began before VWX was born, with a protection application brought on the basis of an ‘unborn’ report that arose from protective concerns related to the older daughter, who was then 14 years old, and the likelihood that those same protective concerns, if unaddressed would place VWX at risk of harm.
The older daughter had been the victim of a sexual assault which occurred some four months prior to the birth of VWX.
Following the protection application, VWX was placed into kinship care with the mother also living in the carer’s home. That placement broke down on 10 March 2020 and as a consequence the mother was no longer afforded the opportunity to reside with VWX.
After a brief time in respite, VWX was placed with the carers. VWX has resided with the carers since 2 December 2020, when she was 11 months of age.
On 23 April 2021, the Children’s Court made a Care by Secretary order, following an application by DFFH based on the mother’s engagement in illicit substance use, limited capacity to respond to the risk of sexual exploitation and neglect.
On 10 November 2022, DFFH filed its application for a PCO, the determination of which constitutes the decision the subject of the appeal to this Court.
The decision
The learned Magistrate held that the pre-requisites for making a PCO had been met. The PCO was made subject to conditions that the carers:
(a) must preserve the child’s identity and connection to the child’s culture of origin;
(b) must preserve the child’s relationship with the child’s birth family;
(c) must facilitate contact between the child and the mother on up to 4 occasions each year;
(d) may facilitate contact between the child and her father on up to 4 occasions each year if they consider it in her best interests to do so.
The PCO was granted solely on the basis of s 319(1)(b)(ii) of the Act, namely, that it would not be in the best interests of VWX for the mother to resume parental responsibility for her.
Grounds of appeal
The appellant’s appeal is based on four grounds:
(a) the learned Magistrate erred by failing to consider the mandatory principles specified in s 10(3)(a), (b), (g) and/or (i) of the Act, or misconstrued one or more of those provisions;
(b) the learned Magistrate erred by misconstruing the Act in treating the carers with whom VWX had been placed (the carers) as VWX’s parents for the purposes of considering the principles mandated by the Act in relation to the removal of a child from her parents;
(c) the learned Magistrate erred by finding that there was an ‘unacceptable risk of harm’ to VWX if she were removed from the carers’ care and returned to the mother’s care, in circumstances where her Honour found that the protective concerns initially raised by DFFH were unfounded and where DFFH ultimately conceded that the mother was able to care for VWX;
(d) the decision of the primary judge is affected by a reasonable apprehension of bias, in that a reasonable observer might apprehend that her Honour might have prejudged the matter.
Legislative framework
The following provisions of the Act are of particular relevance to this appeal:
3 Definitions
(1) In this Act-
care, in relation to a child, means the daily care and control of the child, whether or not involving parental responsibility for the child
out of home care means care of a child by a person other than a parent of the child
parent, in relation to a child, includes –
(a) the father and mother of the child; and
(b) the spouse of the father or mother of the child; and
(c) the domestic partner of the father or mother of the child; and
(d) any person who has parental responsibility for the child, other than the Secretary; and
(e) a person whose name is entered as the father of the child in the register of births in the Register maintained by the Registrar of Births, Deaths and Marriages under Part 7 of the Births, Deaths and Marriages Registration Act 1996; and
(f) a person who acknowledges that he is the father of the child by an instrument of the kind described in section 8(2) of the Status of Children Act 1974; and
(g) a person in respect of whom a court has made a declaration or a finding or order that the person is the father of the child;
parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law or custom, parents have in relation to children
8 Decision makers to have regard to principles
(1) The Court must have regard to the principles set out in this Part (where relevant) in making any decision or taking any action under this Act
10 Best interest principles
(1) For the purposes of this Act the best interests of the child must always be paramount.
(2) 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.
(3) In addition to subsections (1) and (2), in determining what decision to make or action to take in the best interests of the child, consideration must be given to the following, where they are relevant to the decision or action—
(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;
(fa) the desirability of making decisions as expeditiously as possible and the possible harmful effect of delay in making a decision or taking an action;
(g) 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;
(h) 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;
(i) 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;
(j) 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;
(k) contact arrangements between the child and the child’s parents, siblings, family members and other persons significant to the child;
(l) the child's social, individual and cultural identity and religious faith (if any) and the child's age, maturity, sex and sexual identity;
(m) 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;
(n) 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;
(o) 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;
(r) any other relevant consideration.
319 When Court may make permanent care order
(1) The Court may make a permanent care order in respect of a child if—
(a) the child’s parent or, if the child’s parent has died, the child's surviving parent has not had care of the child for a period of at least 6 months or for periods that total at least 6 months of the last 12 months; and
(b) it is satisfied that—
(i) the parent is unable or unwilling to resume parental responsibility for the child; or
(ii) it would not be in the best interests of the child for the parent to resume parental responsibility for the child; and
(c) it is satisfied that the person or persons named in the application as suitable to have parental responsibility for the child is or are suitable having regard to—
(i) any prescribed matters; and
(ii) any wishes expressed by the parent in relation to those prescribed matters; and
(d) it is satisfied that the person or persons named in the application is or are willing and able to assume responsibility for the permanent care of the child by having parental responsibility for the child; and
(e) it is satisfied that, so far as is practicable, the wishes and feelings of the child have been ascertained and due consideration given to them, having regard to the age and understanding of the child; and
(f) it is satisfied that the best interests of the child will be promoted by the making of the order
(2) Any period that the child is in the care of a person or body under a child care agreement within the meaning of Part 3.5 must be disregarded in calculating any period under subsection (1).
Ground 1 - Failure to consider s 10(3) principles
The mother contended that the learned Magistrate failed to consider relevant s 10(3) principles. In particular, the mother contended that the Magistrate did not consider the first half of s 10(3)(a), namely ‘the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society’ and instead focused on making an order that would be least disruptive to the status quo, in which VWX was living with the carers.
DFFH submitted that on a fair reading of the reasons, it cannot be concluded that the Magistrate failed to consider the principles referred to by the mother. Rather, the Magistrate ultimately concluded that those factors were outweighed by other factors, in particular the psychological harm that can be suffered by a child on separation from the child’s attachment figures. In this instance, VWX had an attachment to the carers and did not have an attachment to the mother. DFFH referred to literature and amendments to the Act which prioritised trying to resolve protective concerns within 12 or at most 24 months and emphasised that VWX had been in the care of the carers well over that time frame.
The carers submitted that on a fair reading of the reasons, it is readily apparent that the learned Magistrate thoroughly considered the nature of the relationship between VWX and the mother. It was also clear that her Honour considered and evaluated all of the evidence before her and applied the best interests principles to that evidence.
DFFH and the carers relied on the following findings of the Magistrate:[1]
Mr Miksad … received “a lot of feedback” from the carers. He spoke about the carer's children, [VWX]’s connection with her mother, her cultural needs. In his oral evidence Mr Miksad gave evidence that ‘the overwhelming thing for me was that [VWX] was part of that family’. And that, the removal of [VWX] from the [carers] ‘would be as close as it gets’ to removing [VWX] from her parents and family. Mr Miksad's evidence was that ‘pre 5 years of age is critical to attachment and bonding ... removing her would cause harm, I wouldn't say it was irreparable but significant enough to disrupt her development.’
Mr Miksad acknowledged the mother’s progress and the differences in the mother's circumstances at the time of [the younger daughter]’s birth, and presumably at the time of his case plan review in May 2023, however, and this is critical in determining [VWX]'s best interests, ‘unfortunately through this time [VWX] has attached herself to new carers in an effort to maintain her own sense of trust in the world, and breaking this connection would be highly traumatising for [VWX] at this time.’
[1]Secretary Department of Families Fairness and Housing (“DFFH”) v [VWX] (Magistrate R Hamilton, Children’s Court of Victoria, 1 March 2024) [72] –[73] (‘DFFH v VWX’).
DFFH and the carers also submitted that the Magistrate gave direct effect to the principle in s 10(3)(a) by imposing conditions on the order so as to protect and assist an ongoing relationship between VWX and the mother.
I am satisfied that the overall approach of the learned Magistrate in making the PCO did not encompass giving consideration to the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society.
The learned Magistrate correctly identified that ‘the best interests of the child must always be paramount’ and that those interests included a consideration of the existing relationship between VWX and the mother. Her Honour’s conclusions as to VWX being ‘emotionally estranged’[2] from the mother, with ‘no evident attachment’,[3] were relevant considerations, as were her findings that the carers were the ‘only parental figures she has known’.[4]
[2]Ibid [63].
[3]Ibid [22].
[4]Ibid.
However, the harm of removing VWX from the carers and the harm of returning her to her parents were both part of the same side of the coin. The other side of the coin had to be considered.
What is missing from the analysis is a consideration of the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society, as provided for in the first part of s 10(3)(a).
The best interests of VWX included both short term and long term considerations. There was evidence that:
(a) the relationship between VWX and the mother was not irreparable;[5] and
(b) there can be a psychological impact on a child in later years, ‘closer to teenage years’, if that child is placed in care away from a family, particularly when there are siblings who remain with and are raised by the child’s parent.[6]
[5]Ibid [73].
[6]Transcript of Proceedings, Secretary Department of Families Fairness and Housing ("DFFH") v [VWX], (Children’s Court of Victoria, Magistrate R Hamilton, 8 February 2024) 298.27–299.20.
These were important considerations for the learned Magistrate to put into the mix. The principle in s 10(3)(a) was a relevant ‘mandatory’ consideration;[7] and remained a relevant consideration notwithstanding VWX had been in the care of the carers for more than 24 months.
[7]AA v Secretary to Dept of Health and Human Services (2020) 61 VR 436 [76].
Although the learned Magistrate imposed conditions so as to preserve VWX’s relationship with her ‘birth family’ it was necessary for the Magistrate to consider this factor when determining whether it was in the best interests of VWX to make the PCO in the first place.
I am satisfied that the balancing exercise in this instance failed to incorporate a consideration of ‘the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society’ as specified in s 10(3)(a).
Accordingly, I find that ground 1 is made out.
There was some debate as to whether subsections (b), (g) and (i) of s 10(3) had relevance to the application for a PCO. Subsection (b) certainly overlaps with subsection (a) and would have relevance at least in relation to the making of conditions to any PCO, but it is less clear that subsections (g) and (i) have relevance to an application for a PCO. It is not necessary for me to determine that aspect of the appeal. The gravamen of this ground of appeal is that the learned Magistrate failed to consider the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society and I am satisfied that the learned Magistrate did err in this respect.
Ground 2 - Misconstruction of ‘parents’
This ground of appeal is based two paragraphs in the decision which deal with s 10(3)(g) of the Act.
The findings of the Magistrate are as follows:[8]
I have considered and applied the mandatory threshold test that the child is only to be removed from the care of a parent if there is an unacceptable risk of harm having regard to Department of Human Services v DR [2013] VSC 579, per Elliot J at [54] “there is considerable force to the contention that s.10(3)(g) contains a mandatory requirement of unacceptable risk without which there is no proper basis to remove a child from the care of his or her parents”.
In relation to the “unacceptable risk of harm” test, I find there is an unacceptable risk of harm to [VWX] if she were to be removed from the [carers], who are, save for the first 12 months of her life, the primary and only parental figures she has known, and placed with her mother, with whom she has no evident attachment and her stepfather, who to [VWX] at the time of this hearing, remains a complete stranger.
[8]DFFH v VWX (n 1), [21]–[22].
The mother submitted that in her Honour’s consideration of s 10(3)(g), the learned Magistrate treated the then temporary carers as the parents, such that the statutory intention of s 10(3)(g) was inverted.
The mother submitted that ‘the principles intended to protect and promote the parent-child relationships, and to maximise the prospects of reunification of child with his or her parent once the need for protection has passed, would be frustrated if those provisions are read so that the ‘parent’ is the person with whom the child has been placed after removal’.
DFFH conceded that the term parent in s 10(3)(g) does not extend to the foster carers with whom a child is placed pursuant to a Care by Secretary order. While ‘parent’ is given a non-exhaustive definition in s 3 it is evident from the broader context of the Act that the term is intended to be limited to ‘natural’ or ‘legal’ parents and step parents.
DFFH further conceded that in a context where the Children’s Court has already made orders removing VWX from the care of her parents, the terms of s 10(3)(g) are not directly engaged by the determination of an application for permanent care. The Children’s Court was not determining whether to remove the child from the parents’ care but whether the child should remain outside their parents’ care, or be returned to their care.
However, DFFH submitted that a beneficial construction should be given to the reasons and that the phrasing in the relevant paragraphs should be construed as the Magistrate assessing the harm that would be caused if VWX were removed from their care.
DFFH further submitted that, even if there was an error it was not material to the decision as the Magistrate was both entitled to and required by s 10(2) to have regard to the strength of the attachment between VWX and her foster parents and foster siblings and the harm that would be caused by removal from their care.
The carers submitted that the Magistrate did not make a finding that the carers are ‘parents’ in accordance with s 3 of the Act. The Magistrate described the carers as ‘parental figures’ rather than ‘parents’ and was entitled to rely on evidence to the effect that removing VWX from the carers would be ‘as close as it gets’ to removing VWX from her parents and family.
The carers also submitted that the Magistrate was properly explaining that if VWX were placed with the mother, and necessarily removed from the carers, she would be at an unacceptable risk of harm.
I find in favour of the mother in respect of this ground.
I am satisfied that the definition of ‘parent’ does not extend to the carers.
Although the definition of ‘parent’ in s 3 is inclusive, the Act as whole contains a distinction between ‘parental responsibility’ and ‘care’; and between parents and persons providing ‘out of home care’. I am satisfied that the concession made by DFFH is correct and that the term ‘parent’ is intended to be limited to ‘natural’ or ‘legal’ parents and step parents.
I am also satisfied that the learned Magistrate erred in treating the carers as if they were parents, for the purposes of s 10(3)(g). The plain words of [21] and [22] of the decision make it clear that her Honour has misinterpreted and misapplied subsection (g). Her Honour not just asserts that s 10(3)(g) is a relevant consideration, but proceeds on the basis that s 10(3)(g) is a ‘mandatory threshold test that the child is only to be removed from the care of a parent if there is an unacceptable risk of harm’. Her Honour then goes on to apply subsection (g) in the context of the carers being the parents from whom VWX could be removed. Her Honour then determines that there was an unacceptable risk of harm to VWX if she were to be removed from the care of the carers.
I accept that as part of her assessment, the Magistrate was required to consider the harm that would be caused if VWX was removed from the care of the carers, but that does not cure the error.
I am not persuaded that this was an immaterial mistake. Applying the principles expressed by the High Court , ‘the question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error’[9] and the following principle:[10]
‘It would involve improper speculation to attempt to discern how the Tribunal would have reasoned if it had not departed from the required process of reasoning in these respects. It follows that there is a possibility, not fanciful or improbable, that the decision that was made in fact could have been different if the error had not occurred. The threshold of materiality was met.’
[9]LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 [14].
[10]Ibid [36].
Accordingly, I find that ground 2 is made out.
Ground 3 - Erroneous finding of ‘unacceptable risk or harm’
This ground primarily relies on the concession made by DFFH that the mother has the capacity to care for VWX[11] and the following passages of the decision:[12]
[11]DFFH v VWX (n 1) [28].
[12]Ibid [26]–[27].
The list of “Protective Concerns” are repeated almost verbatim in each DFFH court report tendered in these proceedings, including Exhibit D1 Kinship Assessment for Permanent Care as follows;
(a) Exposure to the mother’s ice use
(b) Lack of supervision leading to sibling risk of sexual exploitation
(c) Emotional neglect of the children
(d) Neglect of oldest child - basic needs not met, food, clothing, environment
(e) Mother’s cognitive capacity
(f) Engagement in high risk associations
(g) Mother’s schizophrenia
(h) Lack of engagement with services
Also included in the Kinship Assessment report dated 16 December 2021 is the following statement ‘the mother has not adequately addressed the [protective concerns.’
In her evidence in chief, Seymour Office Team Manager, Ms Naidu gave substantial evidence in relation to each of the listed concerns and whether they remained a protective concern at the time of her departure in January 2023.
a. There were no credible reports nor any other type of evidence suggesting the mother’s past ice use was an ongoing concern, indeed it was clear that he mother had provided clean urine screens as part of having [the younger daughter] placed into her care from birth;
b. Over the time the Seymour office had management of the case, Ms Naidu had not become aware of the concerns as they related to [the older daughter], other than she was aware of sexual abuse allegations though she did not know the identity of the perpetrator or whether police charges had ensued. There was [no] further evidence of any current or ongoing concerns about the mother’s lack of supervision resulting in sexual exploitation;
c. Ms Naidu had formed an opinion on the basis of staff reports and case notes that the relationship between [VWX] and her mother ‘was not strongly emotionally based’ and that there had been ‘a period of some 3 months when the mother didn’t attend video contact.’ While there is evidence suggesting the relationship between [VWX] and her mother lacks familiarity and meaningful connection, this falls a long way short of “emotional neglect” of [VWX] and accordingly it cannot be considered an ongoing protective concern;
d. there was no evidence provided in relation to any ongoing concern relating to basic needs not being met and indeed a strong inference is available by virtue of both [the older daughter] and 20 month old [younger daughter] residing in their mother's care at the time of this hearing without the need for DFFH involvement;
e. Ms Naidu gave evidence that at the time of her involvement there was a concern about the mother's intellectual functioning and that it compromised her parenting capacity. The mother's parenting capacity was conceded at the conclusion of evidence and I note it is well supported by the DFFH withdrawing its involvement in the absence of protective concerns about the mother's parenting of her younger and therefore more vulnerable child, [the younger daughter].
f. Ms Naidu said in her evidence that while a ‘diagnosis’ of schizophrenia was included as a protective concern in all of the DFFH reports because it had been listed in the Preston office report, there was no evidence of that diagnosis and indeed Ms Naidu accepted in her evidence that it was incorrect information.
g. While lack of engagement was listed repeatedly as a protective concern, Ms Naidu was not able to specify any services which the mother had failed to engage in over her period of managing the case. Ms Naidu gave evidence that in January 2023 her ”understanding was that the mother had supports in place and their child in their care and those issue may have resolved ... also from looking a the file, they were compliant with urine screens and those screens were clear from substances.”
The mother submitted that the learned Magistrate’s characterisation that ‘the evidence falls a long way short of emotional neglect of VWX’,[13] is irreconcilable with the finding that returning VWX to the care of the mother constituted an unacceptable risk of serious harm.
[13]Ibid [27(c)].
DFFH submitted that the Magistrate did not find that the protective concerns initially raised by DFFH were unfounded, but in any event, in circumstances where s 319(1)(b) provides for two alternative grounds for making a PCO, it was clearly open to the Children’s Court to find that notwithstanding that the mother and stepfather were able to resume parental responsibility, it was nevertheless not in VWX’s best interests that they do so.
The carers submitted that the Magistrate’s findings on the evidence were sufficient to find that placing VWX in the care of the mother would present an unacceptable risk of harm to VWX. In this regard, the carers relied on the findings that:
(a) VWX has no observable connection or relationship with the mother;
(b) were the Children’s Court to place VWX with the mother, that would involve removing her from the care of the carers; and
(c) removing VWX from the carers would cause harm significant enough to disrupt her development and would be highly traumatising.
I accept the submissions of the carers in respect of this ground, insofar as they can be separated from grounds 1 and 2.
It was for the Magistrate to weigh up the evidence and the competing considerations in this case and determine whether or not to make a PCO based on one or other (or both) of the two alternative grounds provided for in s 319(1)(b).
Given my findings on grounds 1 and 2, it will be necessary for that task to be undertaken again with the applicable principles in mind. However, a finding that the mother is now able to care for VWX is not necessarily inconsistent with a finding that that it would not be in VWX’s best interests for the mother to resume parental responsibility for her.
Ground 3 is dismissed.
Ground 4 - Apprehended bias
The mother relies on the following statements from the Magistrate during the course of the hearing to support this ground:
it’s quite likely – although I have not heard evidence yet but it’s very likely that she is attached to the carers and considers them her parents and family. That’s a significant factor in the decision on best interests.[14]
…
I can’t say that the mother has capacity to parent that child but I can say that disruption to that child from a primary placement, and in this situation while I am not making any findings these are just my observations – that it would be tantamount to removing a 4-year old child from her parents’ care and, indeed, in this case, of course, in terms of care and daily care an particularly in terms of social relationship, there really is an argument to say that the current carers are her mother and father in that way.[15]
…
… What I am really saying is that the carers have become, to VWX, her parental figures or parents so it becomes a complex issue of balancing the progress that the mother and stepfather of VWX in addressing protective concerns with the best interests of VWX.[16]
[14]Transcript of Proceedings, Secretary Department of Families Fairness and Housing (“DFFH”) v [VWX], (Children’s Court of Victoria, Magistrate R Hamilton, 5 February 2024) 21.17 – 21.21.
[15]Ibid 26.16–26.26.
[16]Ibid 27.1–27.5.
I am not satisfied that these passages do any more than her Honour giving the parties an opportunity to address her on relevant matters.
In any event, there was no bias application made to the Magistrate and I am satisfied that the mother has waived the objection in this regard.[17]
[17]Michael Wilson v Nicholls (2011) 244 CLR 427 [76]; Smits v Roach (2006) 227 CLR 423 [43] & [61]; Vakauta v Kelly (1989) 176 VLR 568 at 577-579.
Ground 4 is dismissed.
Disposition
The matter will now need to be remitted to the Children’s Court for hearing and determination in accordance with the law.
I will hear the parties on the precise form of order and question of costs.
SCHEDULE OF PARTIES
S ECI 2024 01457
BETWEEN:
| JKL (a pseudonym) | Appellant |
| - and - | |
| SECRETARY, DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING | First Respondent |
| - and - | |
| MNO (a pseudonym) | Second Respondent |
| - and - | |
| PQR (a pseudonym) | Third Respondent |
| STU (a pseudonym) | Fourth Respondent |
0
5
0