KDN v The Secretary to the Department of Families, Fairness and Housing

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 00685

KDN (a pseudonym)	Appellant
v
THE SECRETARY TO THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING & ORS (according to the attached schedule)	Respondents

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June 2023
DATE OFJUDGMENT:	16 August 2023
CASE MAY BE CITED AS:	KDN v The Secretary to the Department of Families, Fairness and Housing
MEDIUM NEUTRAL CITATION:	[2023] VSC 479

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APPEAL – Children’s Court of Victoria – Interim accommodation order – Nature of Appeal - Whether appeal under s 271 of the Children Youth and Families Act 2005 (Vic) is in the nature of a rehearing or a hearing de novo – What is required on appeal to establish appealable error - Where Children’s Court’s decision was made following a full witness contest – Where appellant wishes to lead further evidence to establish factual error in Children’s Court decision – When further evidence might be led on appeal – Where party has the right to return to the Children’s Court to apply for a variation - Children, Youth and Families Act 2005 (Vic) s 271.

ABUSE OF PROCESS – Whether there should be summary judgment - Whether appeal has sufficient prospects of success – Civil Procedure Act 2010 (Vic) s 63.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Litigant in person	N/A
For the First Respondent	Ms J Davidson	Department of Families, Fairness and Housing
For the Second Respondent	Mr E Myles	Djirra
For the Third and Fourth Respondent	Ms C Corridon – Independent Children’s Lawyer	Cathleen Corridon Family Lawyers

TABLE OF CONTENTS

A. The application to this Court..................................................................................................... 1

B. A brief, initial background......................................................................................................... 1

C. A preliminary objection to the Independent Children’s Lawyer....................................... 3

D. The nature of an appeal against an interim accommodation order................................... 5

D.1The appeal is an appeal in the nature of a rehearing, rather than a hearing de novo.. 5
D.2What does it mean to establish ‘error’ in an appeal in the nature of a rehearing?.... 11
D.3When might further evidence be led to establish factual error below?...................... 13
D.3.1There is a power to admit evidence..................................................................... 13
D.3.2Evidence that might have been, but was not, put before the Children’s Court 16
D.3.3Evidence of events that have occurred since the making of the Order under appeal.................................................................................................................................. 18

E. The background facts in more detail...................................................................................... 19

F. The proceedings before and findings of the Children’s Court......................................... 24

G. The nature of KDN’s proposed case in the appeal............................................................. 29

H. Is the evidence that KDH proposes to lead in the appeal admissible?........................... 34

I. Does the appeal have sufficient prospects to allow it to proceed?.................................... 35

J. Disposition................................................................................................................................... 37

K. Final observations...................................................................................................................... 38

HIS HONOUR:

A. The application to this Court

KDN,[1] the appellant, has two children with LRP, the second respondent: a son born in September 2015 known as BN, who is the third respondent, and a daughter born in July 2016 known as GN, who is the fourth respondent. LRP has two older daughters of whom KDN is not the father. There is a long history of involvement by the Secretary to the Department of Families, Fairness and Housing (‘the Secretary’, or ‘the Department’) with KDN and LRP’s family arrangements. Following the events described below, KDN has appealed to this Court against an interim accommodation order made by the Children’s Court of Victoria relating to BN and GN. LRP has applied for the summary dismissal of that appeal on the grounds that it is frivolous, vexatious or otherwise an abuse of process. The essence of her argument was that the appeal was ‘unarguable’ in the sense that it was bound to fail. Her application was supported by the Department and the Independent Children’s Lawyer. These reasons concern that application.
[1]KDN is, of course, a pseudonym, as are LRP, BN and GN.

Section 534(1) of the Children, Youth and Families Act 2005 provides that a person must not publish or cause to be published a report of a proceeding that contains any particulars likely to lead to the identification of a witness to that proceeding. For this reason, I have given pseudonyms to those persons who appeared as witnesses in the Children’s Court. The parties will be provided with a version of the judgment in which pseudonyms are not used for witnesses.

B. A brief, initial background

On or about 27 November 2019, BN and GN were placed into the care of KDN’s sister and their aunt, Aunt S. From on or around 19 April 2021, GN and BN started to live again with KDN pursuant to a ‘family preservation order’.[2] The Department remained involved and various conditions were imposed. By this time, LRP was no longer living with KDN although they were still in communication. Then, on 20 September 2021, the Department took BN and GN into emergency care. The process of taking BN and GN into emergency care included the commencement of a proceeding in the Children’s Court alleging a breach of the family preservation order and an application for a ‘care by Secretary order’.[3] On 21 September 2021, the Children’s Court made interim accommodation orders placing BN and GN back with Aunt S until further order and otherwise adjourned the proceeding.[4] Conditions were imposed by which KDN was permitted supervised contact.
[2]A ‘family preservation order’ is a form of a ‘protection order’ made under s 275(1) of the Children, Youth and Families Act 2005 (Vic). It may be made if the Children’s Court is satisfied that a child ‘is in need of protection’. It leaves the ‘responsibility for the supervision of the child’ with the Secretary, but provides for ‘the child to be placed in the day to day care of one or both of the child’s parents’ (Children, Youth and Families Act 2005 (Vic) s 280). The Secretary has the right to visit the child at his or her place of residence (Children, Youth and Families Act 2005 (Vic) s 282) and the family preservation order may include conditions to be observed by the parents of the child (Children, Youth and Families Act 2005 (Vic) s 281).
[3]A ‘care by Secretary order’ is another form of a ‘protection order’ made under s 275(1) of the Children, Youth and Families Act 2005 (Vic). It, too, may be made if the Children’s Court is satisfied that a child ‘is in need of protection’. A care by Secretary order confers parental responsibility on the Secretary for two years, although the Secretary retains the power to return parental responsibility to a parent (Children, Youth and Families Act 2005 (Vic) s 289(1)). On the hearing of an application for a care by Secretary order, the Court has the power instead to make orders including a family preservation order or other orders (Children, Youth and Families Act 2005 (Vic) s 289(1C)).
[4]An ‘interim accommodation order’ is an order made under s 262 of the Children, Youth and Families Act 2005 (Vic). The making of the interim accommodation order had the effect of suspending the family preservation order (Children, Youth and Families Act 2005 (Vic) s 262(7)).

In November and December 2021, there was a five-day hearing in the Children’s Court that the Children’s Court Magistrate described as an ‘Interim Accommodation Order contest’. KDN was represented by a solicitor and counsel, as was LRP. The ‘Independent Children’s Lawyer’ was also present. KDN did not give evidence. On 22 December 2021, the Magistrate in the Children’s Court published reasons in which her Honour expressed her conclusions that there was, at that time, ‘an unacceptable risk of harm to the children if they were to be returned to their father’s care’. Her Honour made an interim accommodation order placing the children with Aunt S. The order included conditions providing for KDN having supervised contact with BN and GN and that ‘contact to progress to unsupervised and then overnights depending on engagement with appropriate services including [the Department], psychologist and MacKillop Family Services’.

Three months later, on 2 March 2022, KDN filed a notice of appeal against the 22 December 2021 interim accommodation order.[5] KDN is self-represented. There have been various delays with the progress of the appeal.[6] On 16 March 2023, LRP filed the summons by which she applied for the summary dismissal of the appeal.
[5]The notice of appeal was dated 17 January 2022.
[6]The appeal was initially listed for hearing on 24 June 2022 with an estimate of one day. On 22 June 2022, KDN sought, and was granted, an adjournment. At that time, it was expected that the Children’s Court would be hearing the application for the protection order on 5 September 2022. That hearing was estimated to take 10 days and would likely have superseded the interim accommodation order that is the subject of this appeal. KDN also anticipated that he would make an application for an order that altered his reporting obligations under the Sex Offenders Registration Act 2004 (Vic) and seek to have that application heard with this appeal. On 21 July 2022, KDN informed the Court that he would seek to rely in the appeal on evidence not placed before the Children’s Court. He was ordered to file affidavits that set out that evidence and explained why it was not led before the Children’s Court. A referral was made to the Victorian Bar Pro Bono Assistance Scheme in relation to KDN’s proposed application for an order that altered his reporting obligations under the Sex Offenders Registration Act 2004 (Vic) and to advise KDN on the scope and procedural requirements of his appeal. The contest in the Children’s Court did not proceed in September 2022. On 6 October 2022, on the application of KDN, this appeal was stayed pending finalisation of the proceeding in the Children’s Court or further order.

It should be noted that the 22 December 2021 interim accommodation order has since been varied on a number of occasions, but BN and GN remain placed with Aunt S. The proceeding in which it was made remains extant in the Children’s Court. There have been delays with that associated with its 10-day estimate and other matters. It does not currently have a hearing date.

C. A preliminary objection to the Independent Children’s Lawyer

Ms Cathleen Corridon is the Independent Children’s Lawyer. She announced her appearance for BN and GN at the hearing of LRP’s application. KDN then applied orally for an order that she not be permitted to appear.[7] He stated that, at a time after May 2021 but before September 2021, he wanted to obtain custody of BN and GN and phoned a number of lawyers looking for assistance. He recently remembered that Ms Corridon was one in the series of lawyers to whom he spoke. He said that she had suggested, or advised, that he ‘wait until the court orders had finished’ before he made any such application, but that she informed him that she could not help him because she had represented the children in the prior proceeding. KDN submitted that it was unfair that Ms Corridon appear because she had given him advice, and that he had informed her of his intention to seek custody.
[7]KDN had anticipated making this application in emails circulated beforehand.

Ms Corridon said that she had no memory of any such phone call, but accepted that she might have received one from KDN. She confirmed that she had acted for BN and GN in prior proceedings. She disputed that, in those circumstances, she would have given KDN any advice, and said that she ‘never gives advice to a parent’.

Neither KDN nor Ms Corridon gave evidence as to the matters referred to. However, I am prepared to accept, for the purpose of this particular application, what KDN had to say.

The Court has the power to restrain lawyers from acting for a client in judicial proceedings as an incident of its inherent jurisdiction to control its process in aid of the administration of justice. The test is whether a ‘fair-minded reasonably informed member of the public would conclude that the proper administration of justice required’ that the lawyer be prevented from acting.[8] It is ‘essential that an injunction to restrain a practitioner from acting on behalf of a client be firmly based on the need for that to occur in the administration of justice’.[9]
[8]Grimwade v Meagher [1995] 1 VR 446, 452 (Mandie J); see also Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501, 515 [40] (Brooking JA); Miller v Martin [2019] VSCA 86, [17]-[20] (Kyrou, Niall and Ashley JJA).
[9]Premier Capital (China) Ltd v Sandhurst Trustees Ltd [2012] VSC 611, [2] (Pagone J).

The information that KDN gave to Ms Corridon was not confidential information that would give Ms Corridon a forensic advantage in this application. What KDN intended to do prior to September 2021 has no relevance to the issues the subject of this application. Ms Corridon was never retained by KDN, and indeed she told him that she could not act for him because of her prior relationship with BN and GN. Any ‘advice’ that she gave has to be seen in that context. Due weight must be given to the public interest that a litigant should not be deprived of their lawyer of choice without good cause.[10] To the extent that it was implied in KDN’s submission that Ms Corridon used the information that he intended to seek custody to precipitate the Department’s actions that led to BN and GN being taken into emergency care, I reject that implication; there is no proper reason for which that inference could be drawn.
[10]Grimwade v Meagher [1995] 1 VR 446, 452 (Mandie J).

For these reasons, I am not persuaded that, in the circumstances of this case, a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires that Ms Corridon not appear for BN and GN in this application. Indeed, the fair-minded reasonably informed member of the public would, in my view, conclude that it would be contrary to the proper administration of justice to prevent Ms Corridon from appearing for BN and GN because of the unsolicited phone call.

D. The nature of an appeal against an interim accommodation order
D.1 The appeal is an appeal in the nature of a rehearing, rather than a hearing de novo

An appeal, speaking generally, might be an ‘appeal stricto sensu’, an ‘appeal de novo’, or an ‘appeal in the nature of a rehearing’.[11] In an appeal de novo, the matter is simply heard afresh in the appeal court with the parties calling evidence for a second time and there is no need to establish any error on the part of the primary judge.[12] In an appeal in the nature of a rehearing, the appeal is determined based on the evidence and other material that was before the primary judge, together with such additional evidence as the court permits to be led, and the appellant is obliged to establish ‘legal, factual or discretionary error’ on the part of the primary judge.[13] Such an appeal might be an appeal on questions of law and fact, or just on questions of law. It is not always straightforward to identify the circumstances in which additional evidence may be admitted, and it is not always straightforward to identify what is meant by ‘factual or discretionary error’ on the part of the court below. In an appeal stricto sensu, the parties are bound by the material placed before the primary judge and, again, the appellant is obliged to establish error on the part of the primary judge. That said, the rights that surround the appeal right in any particular case depend on the terms of the statute that give the right of appeal, rather than on an attempt to fit the appeal into an established category.[14]
[11]See, eg, Allesch v Maunz (2000) 203 CLR 172; Fox v Percy (2003) 214 CLR 118, 124-125 [20] (Gleeson CJ, Gummow and Kirby JJ).
[12]Allesch v Maunz (2000) 203 CLR 172, [23] (Gaudron, McHugh, Gummow and Hayne JJ).
[13]Ibid [44] (Kirby J); Minister for Immigration and Border Protection v SZVFW (2018) 246 CLR 541, 555-556 [30] (Gageler J).
[14]Fox v Percy (2003) 214 CLR 118, 124-125 [20] (Gleeson CJ, Gummow and Kirby JJ).

Because the nature and characteristics of any appeal depend on the terms of the statute by which the right of appeal is conferred, it is necessary to consider the language used in s 271 of the Children, Youth and Families Act 2005. It is useful, also, to look at relevant language used elsewhere in the Children, Youth and Families Act 2005.

The right of appeal against an interim accommodation order is given by s 271 of the Children, Youth and Families Act 2005. That provision provides as follows:

271 Appeal against interim accommodation order
(1) If the Court makes an interim accommodation order in respect of a child ... , then—
(a)       the child; or
(b)       a parent of the child; or
(c)       a protective intervener—
may appeal to the Supreme Court against the order ....
(2)On an appeal under this section against an interim accommodation order, the Supreme Court must—
(a) if it thinks that a different interim accommodation order should have been made—
(i)        set aside the order of the Children's Court; and
(ii)make any other order that it thinks ought to have been made; or

(b) in any other case, dismiss the appeal.

Beyond establishing that to succeed the appellant must persuade the appellate court that ‘a different accommodation order should have been made’, the nature of an appeal under this section is not immediately apparent. Some assistance is obtained, however, by comparing it to other rights of appeal given by the same Act:

(a) Section 239 of the Children, Youth and Families Act 2005 gives a right of appeal against a ‘temporary assessment order’. Section 239(3) then uses the same language (but referring to a temporary assessment order rather than to an interim accommodation order) that is used in s 271(2) set out above.

It is noteworthy that the same language is used on both occasions where a right of appeal is given against an interim or a temporary order.

(b) Part 5.4 of the Children, Youth and Families Act 2005 deals with appeals relating to convictions of an offence by the Criminal Division of the Children’s Court. Section 424 gives a person convicted of an offence a right to appeal against conviction or sentence to the County Court or, if the Children’s Court was constituted by the President or the Chief Magistrate, to the Trial Division of the Supreme Court. Section 426(1) provides that such an appeal ‘must be conducted as a rehearing’ and that the appellant is not bound by the plea entered in the Children’s Court. Importantly, s 426(2) provides that on the hearing of such an appeal the appellate court ‘must set aside the sentence of the Children’s Court’ and ‘may impose’ any sentence which the appellate court considers appropriate. Similarly, s 427 gives the Director of Public Prosecutions a right of appeal against a sentence imposed by the Children’s Court, s 429(1) provides that such an appeal ‘must be conducted as a rehearing and the respondent is not bound by the plea entered in the Children’s Court’, and s 429(2) provides that on the hearing of an appeal under s 427 the appellate court ‘must set aside the sentence of the Children’s Court’ and ‘may impose’ any sentence which the appellate court considers appropriate.

The obligation on the appellate court to set aside the order below as part of the appellate process indicates that the appellate court is not concerned with determining whether there was error below but is instead required to consider the matter afresh. This is also consistent with the fact that the accused is not bound by the plea entered below, which could not be the case if the appellate court were concerned with reviewing the proceeding below rather than starting afresh. It has been accepted that these appeals proceed by way of a hearing de novo.[15]
[15]See, eg: Webster v R (2016) 258 A Crim R 301, 302 [2] (Maxwell P and Redlich JA); AS v R [2019] VSC 260, [4] (Champion J).

(c) Section 328 of the Children, Youth and Families Act 2005, which was repealed in 2021, gave a right of appeal against, among other things, a protection order or the dismissal of a protection application, a therapeutic treatment order or the dismissal of an application for a therapeutic treatment order, or orders varying or revoking a family preservation order, family reunification order, or a permanent care order. Section 328(6) provided that s 426(1) applied as if a reference to an appeal under s 424 were a reference to an appeal under s 328. It was, therefore, established that an appeal under 328 was also a hearing de novo.[16]
[16]See, eg, Department of Health and Human Services v County Court of Victoria [2018] VSC 322, [16] (Ginnane J).

(d) Section 329 of the Children, Youth and Families Act 2005 gives a party to proceedings before the Family Division of the Children’s Court a right of appeal ‘on a question of law’ from a ‘final order’ of the Court in the proceeding. Section 430P of the Act provides that a party to a proceeding in the Criminal Division of the Court may appeal to the Supreme Court on a question of law.

The express limitations in these sections to an appeal on a question of law indicates, were there any doubt, that appeal rights given elsewhere in the Act without that expressed limitation are not so limited.

(e) Section 542K(3) provides that unless the rules of the court otherwise provide, a party may appeal against a determination of the Court[17] constituted by a judicial registrar. Section 542K(4) then states:
[17]‘Court’ (with a capital C) is defined to be the Children’s Court of Victoria. See, Children, Youth and Families Act 2005 (Vic) s 3.

(4)If the rules of court do not provide for an appeal from or a review of a decision of the Court constituted by a judicial registrar, the decision is to be subject to a review or an appeal conducted—
(a) by way of hearing de novo by the court constituted by a magistrate for the Court; and
(b) otherwise in accordance with the rules of court, if any.

This is the only occasion in which the Children, Youth and Families Act 2005 specifies that an appeal is to be by way of hearing ‘de novo’. It indicates then where the legislature intends to provide an appeal by way of hearing ‘de novo’, it says so.

(f) Schedule 1 of the Children, Youth and Families Act 2005 provides for the transfer of child protection orders in proceedings between Victoria and another State or Territory or New Zealand. Clause 3 of that schedule gives the Secretary power to transfer ‘a child protection order’ and cl 14 gives the Court the power to transfer ‘a child protection proceeding’ to a participating State. Clause 13 of the schedule then gives a right of appeal against an order made by the Secretary and cl 18 gives a right of appeal against an order made by the Court. Both cls 13 and 18 explicitly limit the appeal to an appeal ‘on a question of law’.

These provisions indicate that where the legislature intends to limit an appeal to an appeal on a question of law, it says so.

The appeal right given by s 271 of the Children, Youth and Families Act 2005 is also to be read in a context where:

(a) An interim accommodation order is, as the name would suggest, an order that may be varied and amended. More particularly, s 270 of the Children, Youth and Families Act 2005 permits an application to be made for ‘a new interim accommodation order’ if ‘new facts or circumstances have arisen since the making of the order.’ Further, as this case demonstrates, an interim accommodation order is often made until a certain date or further order, and the conditions attached to an interim accommodation order may be amended by the Court. In this way, an interim accommodation order is unlike an order that crystalises forever certain rights or obligations between parties to the proceeding. It is, perhaps, akin to an interlocutory order in that an unhappy party can in many circumstances return to the Children’s Court and apply to have a new or varied interim accommodation order made. This raises for consideration the question of how and in what circumstances the appeal right is intended to operate alongside the right to return to the Children’s Court; and

(b) One purpose of the Children, Youth and Families Act 2005 is to ‘provide for the protection of children’[18] and the Children’s Court ‘must have regard to’ certain principles and those principles are ‘intended to give guidance in the administration of’ the Act.[19] The first principle mentioned is that ‘the best interests of the child must always be paramount’.[20]

[18]Children, Youth and Families Act 2005 (Vic) s 1(b).

[19]Children, Youth and Families Act 2005 (Vic) ss 8(1) and 9(1).

[20]Ibid s 10(1).

There have been a number of decisions of judges of this Court that have considered the nature of an appeal under s 271 of the Children, Youth and Families Act 2005 and its predecessor s 80B of the Children and Young Persons Act 1989. So far as I am aware, the Court of Appeal has not done so. Those cases establish, and I respectfully agree, that an appeal under s 271 is not a hearing de novo.[21] That conclusion is compelled, in my view, by:
[21]See, in particular: Secretary to the Department of Human Services v Children’s Court of Victoria [2014] VSC 609, [24] (Macaulay J); Secretary to the Department of Human Services v Children’s Courtof Victoria (2018) 58 VR 490, [15] (Zammit J); Secretary to the Department of Health and Human Services v Children’s Court of Victoria [2020] VSC 527, [5] (Ginnane J); Sani v Secretary of the Department of Families, Fairness and Housing [2021] VSC 366, [11] (Moore J). See also my earlier decisions of Maher v Secretary to the Department of Families, Fairness and Housing [2021] VSC 747 at [4] and MMM v Secretary to the Department of Families, Fairness and Housing [2023] VSC 354 at [15].

(a) The phrasing of s 271(2), which indicates an intention that the Court is required to compare the order that was made with the order that it considers should have been made, rather than simply hear the matter afresh itself. In particular, the use of the past tense in ‘should have been made’ and ‘ought to have been made’ indicates that this Court is concerned, at least initially, with the material that was placed before the Children’s Court;

(b) The absence of a direction that the appeal be conducted by way of hearing de novo, when such a direction was made in s 542K(4) with reference to another category of appeal; and

(c) The absence of a direction that the appellate court ‘must’ set aside the interim accommodation order, when such a direction was made in s 426(2) and s 429(2) of the Act with reference to another category of appeal.

This conclusion is also consistent with the fact that the appeal is against an interim order that, if circumstances have changed, may be varied on application to the Children’s Court, as is the case also with a ‘temporary assessment order’. The language under consideration here has been used in both those circumstances, and only those circumstances. If the Children’s Court has not erred based on the material before it but new evidence has come to light, or circumstances have changed, that it is alleged reveal that a different order ought now to be made, it would clearly be more sensible to have the Children’s Court reconsider the matter, rather than this Court do so the way it would have to if there were a right to an appeal by way of hearing de novo. The Children’s Court is more likely to be familiar with the issues in the case, and is, of course, a specialist court. It is different where the order made is not an order that is designed to be only an interim position.

D.2 What does it mean to establish ‘error’ in an appeal in the nature of a rehearing?

Because it is an ‘appeal in the nature of a rehearing’ but is not a hearing de novo, KDN is obliged to establish ‘error’ on the part of the Children’s Court.[22] KDN’s complaints are directed at the conclusions that the Children’s Court made, rather than at the law that it applied: that is, he asserts error in the factual conclusions it drew and the evaluative conclusions it reached, not in its understanding of the legal principles that apply. Because the appeal is not limited to an appeal on a question of law, he is entitled to do so.
[22]See footnote 12 of this judgment above.

Error is established, clearly, if this Court is of the view that the Children’s Court made a factual finding or conclusion that was not reasonably open on the material before it.[23] The matter is more difficult where it is contended that the Children’s Court’s factual or evaluative conclusions were ‘wrong’ but where the issue is one on which reasonable minds might differ.
[23]That would amount to an error of law: See, eg, Humphrey Earl Ltd v Speechley (1951) 84 CLR 126; S v Crimes Compensation Tribunal [1998] 1 VR 83, 89 (Phillips JA).

In my view, ‘error’, in the relevant sense, is established if this Court, on a review of the evidence, is satisfied that it would have come to a different view to the view taken by the Children’s Court, even if the view taken by the Children’s Court were reasonably open. Otherwise, an appeal on a question of law and fact would blur into an appeal on a question of law; there must be some room for an appellable error of fact that is not an error of law, and, as noted above, the making of a factual finding that is not reasonably open is, itself, an error of law.[24] I note, too, that this conclusion is consistent with the language of s 271 of the Children, Youth and Families Act 2005 which focuses on whether ‘a different interim accommodation order should have been made’.[25] In stating this proposition, I am excluding appeals against the exercise of a discretion, an apportionment in negligence, the awarding of damages and procedural orders.[26]
[24]As an example, the High Court in Warren v Coombes (1979) 142 CLR 531 allowed an appeal because it considered that a different inference should be drawn to the inference that the trial judge drew, notwithstanding that it did not conclude that the inference that the trial judge drew was not reasonably open; it was prepared to treat the trial judge’s inference as ‘erroneous’ because it was in as good a position as the trial judge, and formed a different view: ‘if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves ... they must discharge their duty and give effect to their own judgment.... The fact that judges differ often and markedly as to what would in particular circumstances be expected of a reasonable man seems to us in itself to be a reason why no narrow view should be taken at the appellate function.’ (552). Cf Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, 436, [25] where Drummond, Mansfield and Allsop JJ, relying on Zuvela v Cosmarnan Concrete Pty Ltd (1996) 140 ALR 227, 229-230, seem to suggest that error in the relevant sense is not established in an appeal in the nature of a rehearing if all that can be said is that the appeal court would have come to a different view to the trial court on a factual issue but both views were reasonably open.
[25]It was suggested in Secretary, Department of Human Services v Merigan [2006] VSC 129 (Hansen J) at [30], Secretary to the Department of Human Services v Children’s Court of Victoria [2014] VSC 609 (Macaulay J) at [24] and Sani v Secretary of Department of Families, Fairness and Housing [2021] VSC 366 at [19] (Moore J) that it is not necessary that the Court identify ‘error’ in the Children’s Court decision for the appeal to succeed. But the context in which those statements were made indicates that their Honours were not using the word ‘error’ as applying where the appellate Court forms a view that differs from the view of the Children’s Court, but accepts that both views are open.
[26]In these cases, different principles may apply: Minister for Immigration and Border Protection v SZVFW (2018) 246 CLR 541, 558 [37], 560 [42], 561 [44] (Gageler J).

However, when it comes to establishing errors of fact, even in the sense of establishing that this Court would have come to a different view on a factual issue, this Court is required to have regard to any advantages that the Children’s Court had associated with its having seen and heard the oral evidence. In most circumstances, findings based on the credibility of witnesses who gave oral evidence will not be found to be erroneous unless they are in conflict with incontrovertible facts or are glaringly improbable or contrary to compelling inferences in the case.[27] There will be occasions where the trial judge has advantages even where the findings are not based on credit.[28]

D.3 When might further evidence be led to establish factual error below?

[27]Fox v Percy (2003) 214 CLR 118, 127-128 [27]-[29] (Gleeson CJ, Gummow and Kirby JJ), 138-139 [65]-[66], 141 [72], 146-147 [90] (McHugh J), cf 163 [143], 165-166 [148] (Callinan J); Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550, 558 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); Lee v Lee (2019) 266 CLR 129, 148-149 [55] (Bell, Gageler, Nettle and Edelman JJ). As Bell J noted, writing extra-judicially in Appellate Review of the Facts (2014) 39 Australian Bar Review 133, the need to be sensible of the advantages of a trial judge even in an appeal in the nature of a rehearing has been acknowledged at least since the decision of Lindley MR in Coghlan v Cumberland [1898] 1 Ch 704.

[28]See, eg: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] 117 FCR 424, [24] Drummond, Mansfield and Allsop JJ) and the cases there cited; Minister for Immigration and Border Protection v SZVFW (2018) 246 CLR 541, 556-557 [33] (Gageler J).

KDN is not focusing on the evidence that was before the Children’s Court below but seeks to lead a substantial body of further oral evidence in his appeal. Another issue that has to be considered is whether he is able to do so for the purpose of establishing that the Children’s Court made a wrong factual conclusion.

D.3.1 There is a power to admit evidence

The Children, Youth and Families Act 2005 does not expressly give the Court the power to receive additional evidence on the hearing of the appeal.

Part 4 of ord 58 of the Supreme Court (General Civil Procedure) Rules 2015 applies to appeals under s 271 of the Act.[29] Those rules require the appellant to file an affidavit that refers ‘so far as necessary to the proceeding in which the order appealed from was made and any reasons given for the order’.[30] The rules do not contain any express power to rely on evidence that was not before the Children’s Court. They do provide that a Judge of this Court may make any order ‘to ensure the proper determination of the appeal’.[31] This may be contrasted with r 64.13 of the Supreme Court (General Civil Procedure) Rules 2015, which provides that, in an appeal to the Court of Appeal, ‘oral evidence shall not be adduced’ and evidence not before the court or tribunal below shall not be relied on unless the Court of Appeal otherwise orders and sets out a process for an application for any such order.
[29]Supreme Court (General Civil Procedure) r 58.17.
[30]Ibid r 58.19(2).
[31]Ibid r 58.18(3).

A number of trial judges in this Court have nonetheless concluded that a judge hearing an appeal under s 271 of the Children, Youth and Families Act 2005 may admit evidence that was not before the Children’s Court. That view appears to have started with some obiter of Eames J in Morrow v The Secretary (formerly Director-General), The Department of Health and Community Services (Victoria),[32] where his Honour stated:

In my view, the breadth of the power given to the Supreme Court under s. 79 [the equivalent of s 271], and the nature of the proceedings, being concerned with the protection of children, are such that if the Court, in an appropriate case, thought that, although there was no apparent error of law in the conduct of the hearing before the Magistrate, the order which was made was inappropriate, then, it might interfere and substitute such order as it saw fit, and may do so either on the material provided to the Magistrate or on such information is provided to the Court by way of affidavit. Furthermore, it does not seem to me that the Court would be precluded from hearing oral evidence, if thought appropriate, but it would, in my view, be exceptional for the Court to do so, given that a substantive hearing on the merits of the matter might, without injustice, await the return date in the Magistrates’ Court and be dealt with by that specialist Court in the first instance. It would be entirely inappropriate where this Court saw no reason, on the face of the material before it, to intervene so as to overturn the decision of the Magistrate, to conduct a hearing de novo as to the matters raised for the Magistrate.[33]

[32]Unreported 28 October 1994. It seems that, prior to this decision, appeals of that type were generally treated as if they were limited to an error of law: ‘The procedure which has been adopted in the past on these matters is that they have been dealt with in the Supreme Court upon affidavit evidence only, and have, in general, been treated as appeals on questions of law.’ (17).

[33]Ibid 18-19.

On one view, those comments anticipated further evidence being led only to ascertain what alternative order ought to be made once it was established on the material before the Magistrate that the order below was ‘inappropriate’.

Beach J in Tu v Secretary of Department of Human Services[34] was faced with an appeal from an interim accommodation order that had been made after a five-day contested hearing. His Honour said:

[21]The Children’s Court is a specialised court presided over by Magistrates experienced in matters affecting young children with ready access to expert in the field of child care. It is beyond doubt that Magistrates at the Court become very skilled in dealing with children and assessing the veracity of evidence given by them in courts and of the complaints they make particular complaints of sexual abuse. This Court should be reluctant to interfere with orders of the Court made in such matters, particularly interim orders which are still subject to further review by the Children Court itself and should only do so where it is abundantly clear that some significant error has been made…

[34][1999] VSC 42.

Eames J’s observations were then essentially endorsed by Ashley J in The Secretary, Department of Human Services v Ross,[35] although his Honour did observe, after setting out parts of the passage above, that:

[17]As I see it, his Honour took a view to the ambit of what is now s. 80B which is compatible with my perception of its intended operation. Probably, his Honour’s approach would lead to the receipt of material not before the Children’s Court more readily than I would contemplate; but having regard to the importance of the welfare of child in a case such as this, some lenience may be thought reasonable.

[18]All in all, it seems to me that if an appeal is brought on swiftly from the Children’s Court, and if the material placed before that Court is capable of being reduced to a form upon which this Court can rely, then the appeal ought to be dealt with upon that material and not otherwise. But if the material before the Children’s Court is incapable of being reduced to a form upon which the Court can rely (though that should not be the case), or if between the order being made in the appeal coming on new circumstances have developed, or perhaps if important circumstances were not brought to the attention of the Children’s Court, this court should not be left uninformed when dealing with a s.80B appeal.

[35][2003] VSC 172.

Ashley J appears not to have been referred to Beach J’s observations in Tu v Secretary of Department of Human Services.[36] I interpolate that in this case there is a transcript of the evidence that was given before the Children’s Court, and so the evidence before that Court has been ‘reduced to form upon which this Court can rely’.
[36][1999] VSC 42.

Gillard J then, in Purcell v R,[37] indicated, again without referring to Beach J’s comments, that he would take a broader approach:

[22] I respectfully agree with much of what Eames and Ashley JJ have said but I would not confine material to what was heard and produced before the Magistrate. The subject matter of any appeal concerning an interim accommodation order is too important to be subject to any strict rules.
...
[25]... Given the purpose and nature of an interim accommodation order in circumstances where a protection application has been made, the Court on an appeal under s.80B must consider all relevant material placed before it and is not confined to the material before the magistrate. In my opinion, the appeal is a re-hearing on the material before the magistrate and any other material which is relevant which is placed before this Court.

[37][2004] VSC 14.

Since that time, this Court has accepted that it has the power to admit further evidence on an appeal, but there has not been, so far as I am aware, any detailed discussion of the circumstances in which it should do so.

Having regard to the above, I accept that a judge of this Court hearing an appeal under s 271 of the Children, Youth and Families Act 2005 has the power to admit evidence that was not before the Children’s Court. It does not follow, however, that an appellant will, as of right, be able to rely on material not placed before the Children’s Court. There are good reasons of public policy for holding parties to an appeal to the material that was placed before the Court against whose order the appeal is brought and the leading of fresh evidence in an appeal in the nature of a rehearing is ‘exceptional’.[38]
[38]Fox v Percy (2003) 214 CLR 118, 125 [22] (Gleeson CJ, Gummow and Kirby JJ).

In determining when new evidence may be relied on, it is necessary to distinguish between evidence that might have been, but was not, put before the Children’s Court, and evidence as to events that have taken place since the decision of the Children’s Court.

D.3.2 Evidence that might have been, but was not, put before the Children’s Court

Ordinarily, in an appeal in the nature of a rehearing brought in accordance with the Supreme Court (General Civil Procedure) Rules 2015, evidence may not be relied on if it could have been, but was not, put before the trial court. In Clark v Stingel[39] the Court of Appeal said:

[25] The Court has power to receive further evidence upon questions of fact by virtue of Order 64.22(3). The principles upon which the Court will grant leave to introduce fresh evidence upon an appeal are not in doubt. Leave should be given only if:
·By the exercise of reasonable diligence such evidence could not have been discovered in time to be used in the original trial.
·It is reasonably clear that if the evidence had been available at the trial, and had been adduced, an opposite result would have been produced.
·The evidence proposed to be adduced is reasonably credible.[40]

[39](2007) VSCA 292.

[40]Ibid [25]. See also: Foody v Horewood (2007) 62 ACSR 576, 598, [61] (Chernov J); Orr v Holmes (1948) 76 CLR 632, 635 (Latham CJ), 640 (Dixon J).

This is because ‘considerations of justice and of public interest’ suggest there should be finality of litigation ‘in other than the truly exceptional case’.[41] Also, if new evidence is to be relied upon in an appeal, it may have to be tested, or responded to, before the appeal can be decided. That could require the calling of oral evidence and making witnesses available for cross-examination. The practical result, then, would be, in many cases, to turn the appeal into a second fact-finding process and to blur the distinction between an appeal in the nature of a rehearing and a de novo appeal. It must be remembered that there is no common law right to an appeal and the appeal process is a statutory one. If the legislature has not provided for a de novo appeal, an appeal should not be turned into an appeal of that nature by the admission of new evidence under the guise of that evidence being necessary not to form a new view, but to identify whether the decision below was wrong.
[41]Foody v Horewood (2007) 62 ACSR 576, 598 [61] (Chernov J), citing Greater Wollongong City Council v Cowan (1955) 93 CLR 435, 444 (Dixon J).

Of course, in an appeal against an interim accommodation order, the Court must be guided, in the exercise of this power as with everything else, by the best interests of the child.

Also, different considerations may apply if the appeal Court has formed the view that a different order ought to have been made, and embarks on the process of deciding what order should be made. In those circumstances, the Court may well be assisted by further evidence.

D.3.3 Evidence of events that have occurred since the making of the Order under appeal

The receipt of evidence of events that have occurred since the making of the interim accommodation order could cause many of the same problems. Often, the evidence would be contested, and have to be tested, before it may be acted upon. To be done properly, that could, again, require the calling of oral evidence and making people available for cross-examination. That would, again, involve the appeal court in a fact-finding exercise not normally associated with the appellate process.

An ‘impossible situation’ would arise if evidence were to be admitted on appeal of every development which may have taken place since the trial, and to do so would be contrary to the general public interest in the finality of litigation.[42] The scope for endless re-gathering of evidence is apparent. Accordingly, evidence of this type should only be admitted where to refuse to do so ‘would affront common sense’.[43]
[42]Mobilio v Balliotis [1998] 3 VR 833, 852 (Brooking JA).
[43]Ibid, quoting and approving Mulholland v Mitchell [1971] A.C. 666, 679-80 (Lord Wilberforce).

Any concern that the refusal to accept such material might result in injustice is ameliorated by the fact that if circumstances have significantly changed, a party has the right, as noted above, to approach the Children’s Court and to seek a variation of the Order, or its revocation. Section 270 of the Children, Youth and Families Act 2005 provides that:

270 Application for new interim accommodation order
(1)If an interim accommodation order is in force in respect of a child, the child or a parent of the child may apply to the court for a new interim accommodation order if—
(a) the applicant is not legally represented at the hearing of the application for the order; or
(b)new facts or circumstances have arisen since the making of the order.

Section 268 of the Children, Youth and Families Act 2005 has a like provision by which a party may apply for a variation of the conditions included in the interim accommodation order. The use of these provisions where they apply is, self-evidently, more appropriate than attempting to achieve the same ends by way of an appeal to this Court.

The above observations do not apply in circumstances where this Court has formed the view that the decision below was wrong and is engaged in the process of determining what order should be made in place of the order below. Notwithstanding the use of the past tense in s 271(2)(a)(ii) of the Children, Youth and Families Act 2005, it would be an odd result if this Court were obliged to make an interim accommodation order, that could only operate prospectively, based only on material that had become out of date. But it is not, presently, necessary for me to consider this circumstance.

E. The background facts in more detail

In order to determine whether KDN is entitled to lead the evidence he wishes to lead on the appeal, and to consider whether the appeal has insufficient prospects of success to justify its summary dismissal, it is necessary to consider in more detail the issues that arose and how they were determined below.

In August 2006, KDN was convicted of a series of serious sexual offences that took place over an 18 month period between 2003 and 2005, on his then-partner’s daughter (who was also his step-daughter) when she was between 12 and 14 years old. It was alleged that KDN had ‘threatened and intimidated her into submitting to his offending’. KDN was sentenced to a period of imprisonment and released from custody in 2013. He has no ongoing contact with his former family.

After his release, KDN met and started a relationship with LRP. LRP already had two daughters born in 2007 and 2008. LRP has an acquired brain injury and has difficulties parenting.[44] In September 2015, BN was born. KDN and LRP wanted to live together. The Department became involved. LRP’s two older daughters went to live with LRP’s mother, and KDN and LRP started to live together with BN. This was due to the Department’s concern that KDN might sexually abuse them, as he had his previous step-daughter. KDN was permitted supervised contact with LRP’s elder children. In July 2016, GN was born. The Department continued its involvement with KDN and his family.
[44]No one is suggesting that she is presently capable to looking after BN or DN on her own.

On 7 February 2016, the forensic psychologist Dr T prepared a psychosexual risk assessment of KDN. She assessed him at a ‘moderate-to-high risk of sexual recidivism’.

KDN applied to have ‘the family reunited’ by having LRP’s older daughters placed in his and LRP’s care. The Department opposed this happening. On 5 April 2017, the Children’s Court ruled that it would be contrary to those children’s best interest to be placed with LRP while she was residing with KDN. In reaching that conclusion, it stated that the children would be ‘at an unacceptable risk’ of sexual abuse and that LRP was unlikely to protect them from such harm. It indicated that contact between KDN and LRP’s older children could ‘progress’ if KDN engaged substantively with an appropriate therapeutic agency and demonstrated an ability to comply with orders.

In June 2018, a condition was imposed that KDN not live with BN and GN and that his contact with them be supervised. On 7 September 2018, a forensic psychologist, Dr C, noted that KDN’s childhood was ‘characterised by violence and sexual trauma’ and opined that KDN was antagonistic towards Child Protection and that he manages his anxiety ‘through hostility and control’. She considered that he met a diagnosis of paedophilia and had a ‘low risk’ of sexual re-offending. In or around September 2018, KDN was permitted to return to his home.[45] As best I can ascertain, an interim accommodation order was made that facilitated that happening.
[45]I have ascertained that KDN was permitted to return home from the report of forensic psychologist Dr C.

There was litigation in the Children’s Court and then in the County Court in 2017 and 2018. KDN believes that the Department relied on false reports in order to discredit him.

In March 2019, a ‘family preservation order’ was made providing for the children to be placed into the care of both KDN and LRP.

On 19 October 2019, LRP and KDN became involved in a physical altercation.[46] The police were called. An intervention order was made that had the effect of requiring KDN to move out. BN and GN were placed in LRP’s care. KDN asserts that the episode was initiated by LRP, at the Department’s suggestion, in order to frustrate the process then in place whereby LRP’s older children were to be gradually reunited with LRP, KDN and their two children. LRP was unable adequately to look after BN and GN herself and for a short period of time they were placed in government care. On or about 27 November 2019, BN and GN were placed into the care of KDN’s sister, Aunt S.
[46]LRP made 5 other reports of family violence between 19 October 2019 and 31 January 2021. KDN denies that he was ever violent, save for one occasion when, to his regret, he made (moderate not extreme) physical contact with LRP following provocation and violence by her.

In April 2021, another family preservation order was made placing the children into KDN’s care. GN and BN started to live again with KDN from on or around 19 April 2021. The Secretary remained involved and various conditions were imposed. By this time, LRP was no longer living with KDN, although they were still in communication. The caseworkers for the Secretary included Ms N, Ms D, Ms M, and Ms A.

There were then a number of events that led to GN and BN being removed again from KDN’s care. The events included the following:

(a) On 1 July 2021, Ms D and someone from the Department attended at the children’s day care centre to meet with KDN. The child care centre, they say, raised a concern that KDN had insisted on going into the toilet to pick up GN, despite other children being in there, when they had said that they would bring her out. They also asserted that KDN had made inappropriate comments to them that made them uncomfortable;

(b) On 5 August 2021, Ms A and Ms N attended at KDN’s home. They identified that there was a web camera in GN’s bedroom. KDN says that it was not connected and that he demonstrated this to Ms A, and that he had put it in there to comfort the children. KDN expressed interest in engaging with Mackillop Family Services.

(c) On 19 August 2021, Ms A and Ms N attended at the children’s day care centre and spoke to BN and GN. GN told them, among other things, that she and KDN shared a ‘secret’ that happened in her bedroom after BN was asleep and that she was not to talk to LRP or Aunt S about this secret. GN would not disclose the nature of the secret. Understandably, this caused concern.

(d) On 6 September 2021, Ms A and Ms N conducted an unannounced visit at KDN’s home. The house was clean and tidy. KDN was visibly angry at the visit. He told them that he did not consent to them visiting his children at their childcare. Ms A contends that as a result of this visit she had concerns about a possible deterioration in the state of KDN’s mental health. She formed the view that KDN was trying to intimidate her.

(e) On 15 September 2021, Ms M and Ms D attended at KDN’s home. KDN said he recorded that visit. He asserts that Ms M was intoxicated, and that she ‘planted evidence’ in his daughter’s room and tried to take a picture of it but was frustrated by him in this endeavour. KDN later sent text messages to the Department accusing Ms M of having been drug affected, of taking photos of GN and of working for a ‘paedo ring’.

(f) Ms M says that, on 18 September 2021, she saw KDN in a bush when she was on a walk, and that he ran away when he realised that she had seen him. She felt that he was ‘lurking’ and that his behaviour was threatening. KDN denies that this occurred.

(g) On 20 September 2021, Ms D and Ms N spoke again to BN and GN at their childcare. GN had a bruise and made some references to being hit by KDN including with a belt, although it was possible that this was a reference to events that took place only when she was a baby. GN also mentioned that KDN yelled at her loudly that made her cry and, to some extent, said that she felt ‘unsafe’. She indicated that she and KDN no longer have a secret.

On 20 September 2021, BN and GN were taken into emergency care. The Department filed an application for breach of the family preservation order, and, on 21 September 2021, the Children’s Court made the interim accommodation order placing BN and GN with KDN’s sister, Aunt S, and adjourned the matter to 5 October 2021. At the hearing on 5 October 2021, some conditions of the 21 September 2021 interim accommodation order were varied and extended by which KDN was permitted supervised contact.

On 4 October 2021, KDN spoke to Ms A and someone from the Department. He made it clear that he believed that BN and GN were taken without proper grounds and as part of a pre-meditated plan.

On 8 October 2021, KDN was assessed by the psychiatrist Dr D. KDN told Dr D that he had ongoing contact with a counsellor, Dr L, and a psychologist, Dr P. KDN told Dr D, when asked about the sexual assaults of his prior step-daughter, that she was ‘sexually mature’ and that ‘she came on to’ him a bit and that ‘he took advantage’, and that he had told her to keep it a secret. Dr D opined that KDN demonstrated ‘ongoing paranoid traits, particularly focused on child protection staff’ and that his interactions with child protection ‘are antagonistic and conflictual’. Dr D opined that KDN would not ‘satisfy a diagnosis of paedophilia or other sexual disorder’. Dr D did not provide an opinion on parenting capacity, but indicated a need for ongoing ‘monitoring of risk’, and stated that ‘given his longstanding acrimony towards child protection, this will likely continue to result in behaviours which paradoxically raise further concerns with child protection and render intervention more, rather than less, likely.’ Dr D later advised Ms A in a telephone call that ‘the onus is on [KDN] to all work towards reunification and this will be a challenge for him’, and that there ‘should be increasing amounts of contact supervised by child protection to see how it goes or by the aunt if preferred.’

On 11 November 2021, the Department reported to the Children’s Court and suggested that the proceedings be adjourned for three months, with the interim accommodation order in place, ‘to enable the parents to engage with services to develop parental capacity and engage in an assessment of the feasibility of reunification’.

There was then a misunderstanding in that KDN contacted an organisation called MacKillop Child FIRST. That organisation said that it could not assist, and contends that KDN was abusive when told this. It was in fact another organisation, MacKillop Family Preservation and Reunification Response, that had accepted the referral. KDN met with that organisation and it was agreed that a meeting with Dr D and KDN’s psychologist Dr P would also occur. Another organisation, Relationships Australia, considered that KDN was not suitable to attend its Men’s Behaviour Change Program because, it contended, he was not ‘group ready’ because he was ‘uncontained and would be disruptive in group sessions’.

F. The proceedings before and findings of the Children’s Court

As noted above, the matter came before the Children’s Court on 15 November 2021 and proceeded over five days. KDN sought the immediate return of this children to his care. The Department and the Independent Children’s Lawyer supported ‘an eventual reunification of the children to the father’ but in the meantime the existing current interim accommodation order to Aunt S be continued. No one suggested that LRP was in a position to care for the children. Oral evidence was given by Ms A, Ms M and Ms N (caseworkers from the Department involved with KDN), Dr D (the psychiatrist who had examined KDN on 3 November 2021), Dr P (KDN’s treating psychologist), a police officer, a family reunification support worker, two persons from the children’s day care centre, Aunt S, and Mr P (KDN’s neighbour). Various documents were tendered. KDN had legal representation. He did not give evidence.

The Magistrate reserved and provided detailed written reasons on 22 December 2021 (‘the Reasons’). The Magistrate started by observing that ‘this is an interim contest and does not conclude in finality as to any of the issues between the parties’, and by correctly expressing the test as being whether the children would be ‘at unacceptable risk of harm, physical, emotional, psychological or developmental, if they were to be placed in the care of the parent’ and in that context ‘which interim order is in the best interest of the children’. [47] The reasons reveal that:
[47]Department of Families, Fairness and Housing v BN and GN (Childrens Court of Victoria), Magistrate K Parkinson (22 December 2021) [5]. I note in the proceeding in the Childrens Court, pseudonyms were not provided to the children in the reasons, and accordingly, in my citation of the reasons I have used the pseudonyms for the children in the proceeding.

(a) Her Honour concluded that the text messages sent by KDN on 15 September 2021 that accused Ms M of being a ‘paedo’ and of being under the influence of substances were ‘very disturbing’ and raised ‘very serious concerns as to [KDN’s]’s mental health status’[48] and, more broadly, that KDN’s accusation of misconduct on the part of the Department’s workers were ‘extreme’ and ‘entirely unsupported in fact or evidence’ and revealed a ‘lack of reality and extremity of reactions and responses’.[49] KDN’s complaints were ‘both rambling, in many respects illogical and confused and at times abusive, raising serious concerns as to [his] current mental health status and his capacity to respond and react reasonably in situations of stress’, which was ‘particularly relevant having regard to the reports of Dr C, and Dr D as to risk and its potential for escalation in the context of stress’.[50] The accusations made by KDN raised ‘serious concerns in the Court as to the state of [his] mental health and his safety in terms of providing care to the children.’[51]
[48]Ibid [13].
[49]Ibid [16].
[50]Ibid [17].
[51]Ibid [18].

(b) Her Honour accepted the evidence of Ms M that on 18 September 2021, after KDN had previously been agitated by her attendance at his home and after he had made ‘concerning allegations‘ about her to her managers and to the police and appeared to have ‘an unreasonable dislike of her’, she observed him ‘in the bushes off the track’ while she was walking through parkland. KDN disputed that he had followed her or indeed had been in the park at all. Her Honour, however, stated that she accepted Ms M’s evidence and ‘was satisfied on balance that [KDN] was at the location as described.’[52] Her Honour observed that the entire incident may have been coincidental and the evidence in itself was not of much significance save for the fact that it was denied by KDN.[53] That, her Honour concluded, indicated that KDN ‘continues to be evasive and uncooperative’.[54]
[52]Ibid [60].
[53]Ibid [61].
[54]Ibid [64].

(c) Her Honour concluded that if the children were placed with KDN there was an unacceptable risk that the children would ‘develop a hostile world view’.[55]
[55]Ibid [23].

(d) Her Honour set out the evidence of Dr D that, before the children were returned to KDN’s care, the following interventions had to be ‘actively in place’:

(i) KDN had to ‘firmly engage with a psychologist’ and continue ‘to address his world view and manage his antagonistic relationships’;

(ii) KDN had to ‘engage with child and family services and a parenting service and that there be educative feedback from such services and the opportunity for observation of parenting and feedback’.[56]
[56]Ibid [21].

(e) Her Honour set out the evidence of Dr P that the psychological sessions he had been providing had taken place by telephone only and were ‘touching base’ sessions ‘devoid of therapeutic or challenging therapy’.[57] Her Honour noted that Dr P had not been able ‘to interrogate in a clinical sense the implications’ of some of KDN’s behaviours, and, although Dr P’s evidence was initially that he did not consider KDN constituted a risk to the children if they were in his care, his evidence had ‘suffered from a lack of knowledge about incidents’, and that his opinion was ‘somewhat tempered’ by additional information provided to him in the proceeding’,[58] and that some of the matters about which he had not been informed were ‘concerning’.[59]
[57]Ibid [27].
[58]Ibid [29].
[59]Ibid [33].

(f) Her Honour then stated:

[35][Dr P’s] evidence was that according to the information he received from the father, it appeared that the children’s emotional, physical, and psychological needs were being met. He stated that if the information was otherwise, he would like to know about that. He acknowledged in evidence that if the father was displaying anxious and depressive symptoms that could impact upon the children and if it occurred on a regular basis and the children had a lack of assurance and clarity regarding safety and security over a period of time, their sense of safety deteriorates and they may have difficulty with attachment and trust. I am satisfied that there is evidence of this occurring with the children currently.
[36]Having regard to the evidence of the psychiatrist and psychologist [that is, Dr D and Dr P], I am satisfied that there is an unacceptable risk of harm to the children if they were to be returned to their father’s care absent the recommendations and assessments being undertaken.

(g) Her Honour, towards the end of her reasons, after noting that KDN ‘can only get on with people who have some authority only if they agree with his view of the world and do not challenge him’[60] and that the organisers of a Men’s Behaviour Change Program to which he was referred have advised that KDN ‘is not suitable for the group sessions as he is disruptive of the group and aggressive in engagement’[61] also stated the following:
[60]Ibid [66].
[61]Ibid [68].

[70]I cannot be confident that [KDN] is continuing or will continue to be engaged with psychological counselling and support, either with Dr P or otherwise. I cannot be confident that [KDN] is yet able to progress to a point where he can be supported by a [Men’s Behaviour Change Program]. This needs to be identified in order for the risk in relation to physical harm to be ameliorated to less than unacceptable.

(h) Her Honour considered KDN’s ‘sexual risk profile’. Her Honour accepted that there was a low level of risk of further sexual offending whilst there were ‘well controlled circumstances’, but that, accepting the evidence of Dr C, KDN’s ‘risk profile increases if he is in situations of stress or relationship difficulties’.[62] This was because KDN’s explanation of his previous offending was that he had been in a situation of personal stress which he was unable to manage. Her Honour then stated, in this context, that:
[62]Ibid [39].

[44]... It is… imperative that there be confidence in the father’s capacity to engage frankly and fully with [the Department] and I am satisfied that this is not the case at this time. This is an unacceptable risk to the safety of the children if they were in his care.

(i) Her Honour considered KDN’s ‘oppositional or aggressive behaviour towards parties other than’ the Department. Her Honour then stated:

[48]I am satisfied that the father’s response to challenging situations is to become aggressive, hostile, and uncooperative. The question is when, if ever, does this conduct become something more than simply anti-social or annoying and shift into something more concerning, in the sense of constituting an unacceptable risk of harm to the children. I am satisfied that the answer to this question is that it does when it has a significant impact or likely significant impact upon the children’s emotional, psychological, physical development or safety. In this case I am satisfied that at this time the father’s behaviours are an unacceptable risk to the children psychological and emotional safety and development.

(j) Her Honour noted KDN’s complaints about the conduct of the Department’s workers and in particular Ms A and his requirement that she be replaced. Her Honour, clearly, did not accept KDN’s characterisation of the evidence on this issue. Her Honour stated that KDN ‘has refused to engage on any reasonable level with [the Department] in order to attempt to resolve the matter.’[63] Her Honour then stated:
[63]Ibid [49].

[51]I am satisfied that there is an unacceptable risk to the children of harm in the father’s care, if he continues to refuse to co-operate with the allocated [Secretary] child protection practitioner whoever that might be presently or in the future. [KDN] has clearly indicated that he will refuse to co-operate with the allocated case worker.

(k) Her Honour noted, in conclusion, that ‘[t]he issue of [KDN’s]’s capacity to clothe and feed and undertake daily care tasks is not in question in this case, it is his capacity to manage safely the day to day care of the children in times of stress and challenge.’[64] Her Honour concluded that there had been ‘an escalation in the father’s unusual behaviours and that the father was behaving erratically and that his mental health was and remains of some concern in a protective sense’.[65] Her Honour then said:

[76]I am further satisfied that an unacceptable risk arises from the fact that the Court can have no confidence that the father will be able to be adequately supervised by [the Department], due to his refusal to engage with [the Department] unless the allocated child protection practitioner is acceptable to him. This is fraught with difficulty for operational and practical reasons. I am also satisfied that there is no evidence in this proceeding that [the Department’s] practitioners have acted unreasonably or unfairly towards the father in the decision making. The evidence is to the contrary.

[64]Ibid [71].

[65]Ibid [75].

As noted above, these matters caused the Magistrate to conclude that there would be ‘an unacceptable risk of harm to the children’ if they were returned to KDN ‘at this time’. Her Honour also noted, and there is no dispute that, Aunt S is a ‘loving, caring and protective aunt’.[66]

G. The nature of KDN’s proposed case in the appeal

[66]Ibid [79].

In order to assess whether there is no real prospect that KDN’s appeal will succeed or whether it is vexatious or otherwise an abuse of process, it is necessary to consider the nature of the arguments that KDN intends to present, the evidence he wishes to lead, and the nature of the appeal.

The arguments that KDN seeks to present on the appeal emerge from affidavits he swore, his notice of appeal, emails he sent to the Court in lieu of a formal written submission on this application, and from what he told me in open Court.

KDN’s essential complaint is that he believes that he has been unfairly treated by the Department and various caseworkers for many years and that this has harmed his children. He believes that the mistreatment of him stems from the fact some years ago that he committed a series of serious sexual offences on his then-partner’s daughter (who was also his step-daughter), as detailed above in para 45. He told me that when a judge ruled in early 2018 that the children could return to him, that judge also directed that his criminal history could no longer be used against him. He believes that the Department, or the caseworkers, are prejudiced against him, fabricate evidence, and provoke incidents, in order to prevent the children from being with him. He believes that they are aided in this by LRP, who has made false accusation against him of violent behaviour. In his words, his children have been ‘stolen’, he has not had a fair go, and that, after seven years of trauma, ‘the truth needs to get out’. His intention is to expose this truth in the appeal. I accept that he genuinely holds these beliefs. I formed the view that he is hoping for, in substance, a judicial enquiry into the way he has been mistreated.

KDN’s notice of appeal filed on 2 March 2022 sets out eight grounds of appeal.[67] None of the grounds of appeal identify an alleged error of law. The first ground of appeal contends that the Magistrate was wrong to rely on some early emails and that this led to bias. The second contends that the Magistrate ‘displayed a vindictive attitude’. The third complains that the Magistrate allowed the Department to rely on ‘prehistoric information’ from 2004 and 2017. The fourth contends that the Magistrate allowed a false and misleading forensic report to be circulated and relied upon. The fifth contends that the Magistrate blocked KDN’s attempt to view the evidence brought forward and ‘to form a practical defence strategy’. The sixth is that the Magistrate allowed a ‘fourth party’ to make a closing statement who had not heard the evidence. This, presumably, is a reference to LRP. LRP’s lawyer attended some days but not every day of the hearing. LRP’s lawyer cross-examined some, but not all witnesses, and made submissions. The seventh is that the Magistrate ‘overruled’ the judge who had earlier returned the children into the care of KDN. The eighth is that the Magistrate ignored reports that showed that the Department’s attitude to KDN was causing trauma to the children.
[67]On 30 May 2022, KDN filed a document headed ‘amended notice of appeal’ but that document is not an amendment to the notice of appeal but is an affidavit setting out his version of events.

KDN was ordered to file and serve any affidavits on which he sought to rely in the appeal including any affidavits explaining why that evidence was not adduced in the Children’s Court. He was also ordered to file and serve a document listing the persons that he wished to subpoena and then to cross-examine that identified the purpose for which he wished to cross-examine, that person and the evidence he sought to obtain from that person in cross-examination. He was later also ordered to file and serve a document identifying the names of any persons he sought to call and a brief summary of the evidence that person would give, and, again, the names of any persons whom he wished to subpoena and then to cross examine and the evidence he wishes obtain from that person in that cross examination.

This process, and the submissions that KDN made, confirm that KDN is concerned about the findings of fact that the Magistrate in the Children’s Court made. I asked KDN what he was seeking to establish in the appeal. He contended that the Magistrate believed ‘the wrong story’ or ‘the wrong truth’. When I asked what other problems there were with the Magistrate’s decision, KDN stated that:

(a) the Magistrate wouldn’t allow his sister to be cross-examined about what had happened to the children in 2017 when, he said, the Department had put ‘smaller clothes’ on BN to make it look like BN had been physically hurt; and

(b) he was not able to speak himself, and his lawyers did not object to things that KDN wanted his solicitor to object to and did not ‘display’ evidence that he wanted led relating to the clothes he was wearing on the day he was said to have seen Ms M in the park.

He then summed up his position by stating:

I believe that specifically, on purpose, lies were told by certain workers in relation to the children being removed.

In order to establish that the Magistrates’ findings of facts were wrong, KDN wishes to call a substantial body of evidence in the appeal. He did not file any affidavits setting out evidence that he intends to call, but he did identify 21 people whom he wants to subpoena (if necessary) and to cross-examine in the course of the appeal and why. The material provided was not said to be associated with any particular ground of appeal. KDN indicated that he wishes to subpoena (if necessary) and to cross-examine:

(a) Four caseworkers, three of whom gave evidence in the Children’s Court. He wishes to cross examine them in order to establish that the evidence they gave in the Children’s Court was false;

(b) Three police officers, one of whom gave evidence in the Children’s Court, in order to establish that the police had not spent sufficient time assessing his matter, had failed to investigate complaints that he had made about the caseworkers, and that an intervention order application brought against him was fabricated;

(c) Ms Corridon, the Independent Children’s Lawyer, in order to impugn her motives;

(d) LRP, in order to demonstrate that her version of events about KDN’s actions was false;

(e) LRP’s cousin, who worked for the Victorian Aboriginal Child Care Agency, in order establish that LRP and her cousin ‘formulated’ a plan to report incidents of domestic violence that occurred in October 2019, which led to the making of an intervention order requiring KDN to move out;

(f) BN’s speech therapist, in order to establish that her sessions were cancelled as part of a plan to ensure that BN was at childcare on the day that the Department removed his children;

(g) Two workers at the childcare centre, in order to establish that one made false complaints about him, and that he had acted appropriately;

(h) A worker at the Salvation Army, in order to establish that he has successfully completed parenting programs;

(i) One of his earlier caseworkers from the Department, in order to establish that his parenting capabilities were ‘spot on’ while that caseworker was involved, and that, as I understand it, the caseworkers who took over from him had not approached the matter fairly;

(j) Mr P, his neighbour, in order to establish that KDN was home at the time that he was said to have been ‘stalking’ one of the childcare workers. Mr P gave evidence in the Children’s Court;

(k) Dr P, his treating psychologist, in order to establish that KDN was doing well looking after BN and GN. Dr P gave evidence before the Children’s Court;

(l) The barrister who represented him in the Children’s Court, in order to establish that she failed to lead evidence that he wanted her to lead and failed to take objections that he wanted her to take, and that, as I understand it, she was motivated by a desire not to affect her ability to obtain work from the Department in the future and that this caused her to make decisions that were not in KDN’s interest;

(m) The solicitor who acted for him, if necessary, in order to establish that KDN has been falsely accused of various matters;

(n) His sister, Aunt S, in order to establish that the children were taken unlawfully and were traumatised. Aunt S gave evidence in the Children’s Court; and

(o) Another of his sisters in order to establish that he had stopped wearing orange work clothes by the time that he was said to have been ‘stalking’ one of his caseworkers, which was what he was said to have been seen wearing on that day, and in order to establish that she had difficulties with the Department in 2017 and that the children had been detrimentally affected by the conduct of the Department since that time.

The above is, necessarily, an incomplete summary. KDN also indicated that he was seeking compensation for himself, Aunt S and the children in the sum of $1,500 per person per day. Strictly, of course, any such claim would not form part of the appeal.

KDN did not file any affidavit material explaining why the evidence he sought to lead on the appeal was not led in the Children’s Court. I asked him whether there was anyone he wished to call who couldn’t have been called in the Children’s Court. KDN accepted that they were all around at the time, and told me that they ‘should have been called’. He also accepted that the evidence he wished to lead related to events that took place prior to the children being removed in September 2021. Notwithstanding those concessions, I accept that the Salvation Army worker whom KDN wishes to call could potentially give evidence about KDN’s involvement with parenting programs undertaken since the interim accommodation order was made.

H. Is the evidence that KDH proposes to lead in the appeal admissible?

KDN would be obliged to persuade the Court on appeal that the Children’s Court came to the wrong conclusion on the evidence before it, unless he were able to persuade the Court to admit further evidence.

With the exception of the Salvation Army worker, the evidence that KDN wishes to call on the appeal was available to be called before the Children’s Court. The only reason he has put forward for which the evidence was not called was that his lawyers failed to do so. The conclusion is inescapable that KDN wishes to conduct what would be in effect a hearing de novo in the hope that the appeal court will draw different factual conclusions from the conclusions that the Children’s Court drew. He wants this Court to re-investigate the factual matters that the Children’s Court investigated, and also, it seems, to conduct a form of inquiry into the motivations of the Department and what he considers to have been their mistreatment of him over many years. That is not, however, the nature of this appeal.

For those reasons, I conclude KDN will not able be to call the evidence that he wishes to call in this appeal. He has not established an entitlement to have the appeal decided other than on the evidence placed before the Children’s Court. The prospects of the appeal must, therefore, be assessed on that basis.

I note that this appeal is against an interim accommodation order that was made after the hearing of extensive oral evidence including cross-examination and where matters of credit, reliability and impression were vital to the outcome. Different considerations may apply where an interim accommodation order is made quickly and on limited material, and a party appeals promptly to this Court. In those cases, the interests of the child might require further evidence to be considered without the usual requirements for the admissibility of further evidence being satisfied. KDN has not satisfied me that in the circumstances of this appeal the interests of the children are such that the evidence should be permitted or that the appeal should be allowed to proceed effectively as a hearing de novo. This is not a case where, for example, evidence has come to light that the children are unsafe or not being well looked after.

I note, also, that this is not an appeal where it is said that there has been a significant change in circumstances since the making of the interim accommodation order under appeal and that, although the order may have been the right order to have made on the material before the Children’s Court, subsequent events have shown that a different order should now be made. KDN is squarely challenging the findings made below and contending that they were wrongly made and that they were obtained as a result of improper conduct by the Department, which contentions the Children’s Court heard and rejected. He has indicated that he wishes to call a Salvation Army officer to give evidence about a parenting program he has done. Little detail of this were provided. But more fundamentally, KDN is not wishing to appeal on the grounds that circumstances have or he has changed; his contention is that the decision was wrong when it was made.

I. Does the appeal have sufficient prospects to allow it to proceed?

As noted above, as well as being provided with many reports, the Children’s Court heard oral evidence over several days from, among others, Ms A, Ms M, Dr D, Dr P and Mr P. KDN’s legal representative cross-examined these witnesses. The Magistrate accepted and acted upon evidence that was given by them. KDN did not, himself, give evidence.

Once it is accepted that KDN is not permitted simply to run his case for a second time in the appeal but is obliged instead to establish error below, he faces the difficulty that the Children’s Court had the considerable advantage of seeing and hearing these witnesses. It is not contended by KDN that the Court’s findings were not open on the evidence, or that there was no evidence to support them. It is rather contended that they were simply the wrong findings — that the Children’s Court ‘believed the wrong story’. In light of the advantage that the Magistrate in the Children’s Court enjoyed, who saw and heard the witnesses and observed the case develop over five days of evidence, there is no realistic prospect that a judge of this Court, on a review of the evidence, will be persuaded that the conclusions the Children’s Court drew were wrong or that ‘a different interim accommodation order should have been made’.[68]
[68]Children, Youth and Families Act 2005 (Vic) s 271(2).

The other complaints that KDN wishes to make, likewise, have no realistic prospects of success. There is no prospect that KDN could establish in this appeal, on a review of the evidence or as a matter of legal principle, that:

(a) KDN’s prior (but now distant) history of sexually abusing his then step-daughter was irrelevant or for some other reason had to be disregarded (whether because an earlier judge had drawn that conclusion or otherwise);

(b) the Magistrate was obliged to agree with, or to reach the same conclusion as, a judge who had at an earlier time, and on different evidence, returned the children to KDN;

(c) the Department’s officers gave false evidence;

(d) the Magistrate was biased or ‘vindictive’;

(e) the Magistrate wrongly prevented KDN’s lawyer from presenting his case, or wrongly limited the cross-examination of Aunt S. In fact, KDN’s lawyer called Aunt S (although the Department arranged for her presence). KDN’s lawyer asked Aunt S about the intervention in 2017. There was then the following exchange between her Honour and KDN’s lawyer:

HER HONOUR: … this goes back to 2017. There have been orders made, this is an interim contest, the purpose of calling this witness is for what? I’m not going to be assisted by [Aunt S] reciting to me her view of the intervention in 2017.
KDN’s LAWYER: Yes, we’ll fast forward.

There is no prospect of establishing that the Magistrate erred by making this observation, particularly where KDN’s lawyer, probably sensibly, did not pursue the matter;

(f) forensic reports put before the Magistrate should have been rejected because they were ‘false and misleading’;

(g) the Magistrate wrongly permitted LRP’s lawyer to address her. LRP, as the mother, clearly had interest in the outcome. The fact that her lawyers did not attend each day of the hearing does not make it wrong for her to address the Court at the conclusion of the hearing. So much was recognised by KDN’s lawyer, who was ‘happy for’ LRP’s lawyer to address the Court. Indeed, it would have been most surprising had the Magistrate refused to let LRP’s lawyer address her; or

(h) the Magistrate was obliged to have regard to, but ignored, evidence that the Department was by its attitude causing trauma to the children.

The complaint that his lawyer did not lead evidence of the clothes that he was wearing on the day that Ms M saw him goes nowhere when it is remembered that KDN did not, himself, give evidence, and he was the natural person to give that evidence.

J. Disposition

KDN clearly loves his children and feels that he has been unfairly treated. His argument that there is no direct evidence that he has harmed his children is powerful. However, that had to be balanced against the risk that the children might suffer harm in his care given the state of mind he was in and pressures that he was under. These were difficult matters to balance. The Children’s Court engaged in that difficult process, and formed the view that, on the material before it, there was that risk and that it justified the temporary removal of the children until various steps were taken or protective measures could be put in place. The children were placed with a family member who, everyone agrees, is providing excellent care. KDN has regular contact with his children. It must be remembered that the court had to act in the interests of the children rather than in the interests of KDN and his understandable desire to have the children with him and his distress at their removal.

No error of law is contended. This appeal is not an opportunity simply to re-litigate the issues that were decided by the Children’s Court by calling the evidence for a second time and supplementing it with additional evidence. For the reasons set out above, I am satisfied that KDN has no real prospects of establishing in this appeal an error of fact or, having regard to the advantage that the Children’s Court had, that a different interim accommodation order should have been made. Accordingly, it is in the interests of justice that the appeal be summarily dismissed.[69]
[69]Civil Procedure Act 2010 s 63.

I will order that KDN’s notice of appeal dated 2 March 2022 be dismissed. I will hear the parties on the question of costs.

K. Final observations

If it were KDN’s position that the interim accommodation order is no longer appropriate because he has, for example, demonstrated that he is capable of engaging productively with the Department or his psychologist or psychiatrist or other service providers, or for any other reason, then he is able to return to the Children’s Court and to seek a variation of the interim accommodation order. Indeed, in circumstances where that is the real argument, that would seem to be a more appropriate course to follow than to try to achieve the same objective by an appeal to this Court.

Nothing in these reasons is intended to suggest that the children ought not to be returned to KDN in the future or that it is not open to the Children’s Court, on the material placed before it, to form the view that there is no unacceptable risk to the children. That could well be the case if, for example, KDN were to demonstrate a willingness to work with service providers or the Department.

SCHEDULE OF PARTIES

S ECI 2022 00685

KDN (a pseudonym)	Appellant
-and-
THE SECRETARY TO THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING	First Respondent
LRP (a pseudonym)	Second Respondent
BN (a pseudonym)	Third Respondent
GN (a pseudonym)	Fourth Respondent

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Citations

KDN v The Secretary to the Department of Families, Fairness and Housing [2023] VSC 479

Most Recent Citation

Weiren v The Secretary to the Department of Families Fairness & Housing [2023] VSC 553

Cases Citing This Decision

3

Legal Services Commissioner v JXL [2023] QSC 283

AGN (a pseudonym) v Secretary to the Department of Families, Fairness and Housing (Redacted) [2024] VSC 176

Weiren v The Secretary to the Department of Families Fairness & Housing [2023] VSC 553

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Statutory Material Cited

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[2023] VSC 479

16 August 2023