JT v Secretary to DHHS - [2019] VSC 783

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 05096

Between:

JT	Plaintiff
-and-
THE SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES	Defendant

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2019
DATE OF JUDGMENT:	29 November 2019
CASE MAY BE CITED AS:	JT v Secretary to DHHS
MEDIUM NEUTRAL CITATION:	[2019] VSC 783

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COURTS AND JUDICIAL SYSTEM — Parens patriae jurisdiction of Supreme Court — Application to return child to mother’s care — Based on protective concerns, warrant issued by Children’s Court to search for child (aged six years) and place in emergency care — Warrant executed by Australian Federal Police when child intercepted at Darwin Airport upon return to Australia from Indonesia with mother JL — Local Court of Northern Territory ordered child to be taken to Department of Health and Human Services (“DHHS”) in Victoria — Child returned to Victoria by Child Protection Service (“CPS”) of DHHS — Interim accommodation order (“IAO”) made by Children’s Court placing child in care of maternal grandmother — Mother’s application for rehearing of IAO in Children’s Court adjourned for mention until mid-December 2019 — Full hearing not likely to be until next year — Circumstances inappropriate for invocation of parens patriae jurisdiction when Children’s Court already in throes of hearing relevant matters — Application refused — Comments suggesting Children’s Court nevertheless should have full hearing far more promptly than currently envisaged — Children, Youth and Families Act 2005 (Vic), ss 10, 241, 262 & 271.

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Appearances:	Counsel	Solicitors
For the Plaintiff	In person	N.A.
For the Defendant	Ms K Evans	Child Protection Litigation Office, Department of Health and Human Services

HIS HONOUR:

Introduction

On 8 November 2019, a child was taken from his mother by Australian Federal Police (“the AFP”) while at Darwin Airport. The AFP were acting pursuant to a warrant issued by the Children’s Court of Victoria. The child has since been returned to Victoria and placed in the care of his maternal grandmother on an interim accommodation order (“IAO”), at least for the time being.

In substance, this is an application, brought by the child’s mother, in the parens patriae jurisdiction of this Court, for the immediate return of the child to her care.

For reasons that follow, including the fact that the issues raised in this case are still before, but have not yet been heard and determined fully by, the Children’s Court, the application will be dismissed.

That said, as I shall explain later, in my view, this matter should be dealt with in the Children’s Court far more expeditiously than appears to be envisaged at present. While I have seen and heard only a small portion of the evidence, and while there is undoubtedly a good deal more investigation to occur, on the strength of the evidence before me, it is plain that there is a strong argument that the child should be returned to…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] VSC 783
Decision Date: 29 November 2019

CaseChat Overview and Summary

The case of JT v Secretary to DHHS involved a dispute over the custody and care of a child, aged six years, who had been placed under emergency care following a warrant issued by the Children’s Court of Victoria. The child had been intercepted at Darwin Airport upon returning to Australia from Indonesia with their mother. The Local Court of Northern Territory ordered the child to be taken to the Department of Health and Human Services in Victoria, where the Child Protection Service subsequently returned the child to Victoria. An interim accommodation order was made by the Children’s Court, placing the child in the care of the maternal grandmother. The mother applied for a rehearing of the interim accommodation order, which was adjourned until mid-December 2019, with a full hearing not expected until the following year.

The central legal issues before the court were whether the Supreme Court should exercise its parens patriae jurisdiction to return the child to the mother’s care and if the existing proceedings in the Children’s Court warranted a prompt resolution of the matter. The court had to determine whether the invocation of parens patriae jurisdiction was appropriate, given the Children’s Court was already handling related matters.

In its reasoning, the court found that the existing proceedings in the Children’s Court were sufficient to address the child's care and welfare, and the circumstances did not warrant the invocation of parens patriae jurisdiction. The court emphasised that the Children’s Court was already in the process of hearing relevant matters and that it would be inappropriate to interfere with its proceedings. However, the court noted that the Children’s Court should aim to resolve the matter more promptly than currently envisaged. The court thus refused the mother’s application to return the child to her care, highlighting the importance of allowing the Children’s Court to manage the ongoing proceedings effectively.

Orders