RP v Foreman - [2020] VSC 522

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT DIARY

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 02301

RP	First Plaintiff
- and -
VS	Second Plaintiff
v
MARYANNE FOREMAN	First Defendant
- and -
EMILY MORVELL	Second Defendant
- and -
THE DEPARTMENT OF HEALTH AND HUMAN SERVICES	Third Defendant

---

JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2020, 13 August 2020
DATE OF RULING:	20 August 2020
CASE MAY BE CITED AS:	RP & Anor v Foreman & Ors
MEDIUM NEUTRAL CITATION:	[2020] VSC 522

---

APPLICATION FOR WRIT OF HABEAS CORPUS – Challenge to Family Reunification Order under Children, Youth and Families Act 2005 – Family Reunification Order not a nullity – Alternative remedies available – Application dismissed – Supreme Court (General Civil Procedure) Rules 2015 O 57 – Children, Youth and Families Act 2005 ss 274, 275, 289(1B), 304, 328, 329, 331, 333 and 515(1)(b) – PR v Department of Human Services [2007] VSC 338.

---

APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	RP appeared in person	Not applicable
For the Second Plaintiff	VS appeared in person	Not applicable
For the First Defendant	No appearance	Not applicable
For the Second Defendant	No appearance	Not applicable
For the Third Defendant	Ms Stephanie Clancy	Department of Health and Human Services

HER HONOUR:

Introduction

This is an application by RP and VS (the ‘Plaintiffs’),[1] who are the mother and father of a 7 year old daughter (the ‘child’), against a Family Reunification Order (‘FRO’) made on 3 June 2019 pursuant to ss 275(1) and 287 of the Children, Youth and Families Act 2005 (‘the Act’).[2] Their application is for a writ of habeas corpus ad subjiciendum (‘habeas corpus’) against the Department of Health and Human Services (‘the Department’) to remedy an allegedly unlawful detention of their daughter pursuant to Order 57 of the Supreme Court (General Procedure) Rules 2015 (‘the Rules’).
[1]The Plaintiffs’ names, and the name of their child, have been anonymised pursuant to order of the Court.
[2]Affidavit of Caitlin Simper, affirmed on 10 August 2020, Exhibit CS-1 (‘Affidavit of Caitlin Simper’).

The FRO was made by Magistrate Smith following the contested hearing of the protection application, which was filed on 28 June 2018 by the Department in respect of the child. The Plaintiffs were parties to the protection application in the Children’s Court and participated in the contested hearing. They submitted that the child should be returned to their care and that the court should make no protection order.[3]
[3]Ibid, Exhibit CS-2.

The Plaintiffs are self-represented litigants. They initially filed an exhibit dated 18 May 2020, which set out their application. The document contained:

(a) an Application for Writ of Habeas Corpus outlining the key submissions of the Plaintiffs; and

(b) an Affidavit of Facts with four attachments.

Subsequently they filed a document dated 10 August 2020, containing a fresh application for writ of habeas corpus and other common law and equitable claims. In addition,…

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.

Keep reading for free

Create a free CaseChat account to read RP v Foreman and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] VSC 522
Decision Date: 20 August 2020

CaseChat Overview and Summary

The applicant, RP, sought a writ of habeas corpus to challenge a Family Reunification Order made under the Children, Youth and Families Act 2005. The matter was heard in the Supreme Court of Victoria. The applicant argued that the Family Reunification Order was a nullity and sought the release of her child from the care of the respondent, the Secretary of the Department of Human Services. The legal issues before the court were whether the Family Reunification Order was a nullity and, if not, whether there were alternative remedies available to the applicant.

The court found that the Family Reunification Order was not a nullity, as it was validly made in accordance with the statutory requirements. The court held that the applicant had not demonstrated any grounds to declare the order a nullity, such as lack of jurisdiction, procedural unfairness or an error of law. The court also found that the applicant had alternative remedies available to her, such as seeking a review of the decision under the Judicial Review Act 1991 or applying to the Family Court for a variation or cancellation of the order. The court noted that the applicant had not sought such remedies before making the application for habeas corpus, which was an unusual course of action. The court dismissed the application and made no orders as to costs.

The court's decision in this case highlights the importance of following the proper legal processes when seeking to challenge a Family Reunification Order. The court found that the applicant had not demonstrated any grounds to declare the order a nullity, and that there were alternative remedies available to her. The court's decision also emphasises the need for applicants to consider all available remedies before seeking an extraordinary writ such as habeas corpus, which is a remedy of last resort. The final orders of the court were that the application for a writ of habeas corpus be dismissed, with no orders as to costs.

Orders