RP & VS v Foreman
[2021] VSCA 115
•7 May 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0102
| RP and VS[1] | Appellants |
| v | |
| MARYANNE FOREMAN and Ors (according to the Schedule attached) | Respondents |
[1]The real names of the appellants have been replaced with the initials used by the primary judge, in order to prevent the identification of a child who is the subject of orders made in the Children’s Court, in accordance with s 534(1) of the Children, Youth and Families Act 2005.
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| JUDGES: | BEACH, NIALL and KENNEDY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 May 2021 |
| DATE OF JUDGMENT: | 7 May 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 115 |
| JUDGMENT APPEALED FROM: | [2020] VSC 522 (Incerti J) |
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PREROGATIVE WRITS – Habeas corpus – Appeal from refusal to grant habeas corpus – Challenge to Family Reunification Order made under Children, Youth and Families Act 2005 – Best interests of the child – Alternative rights of appeal and review – Alternative rights not exercised – Right to apply for revocation not exercised – Inappropriateness of granting habeas corpus – Appeal dismissed – Children, Youth and Families Act 2005, ss 10, 162, 262, 274, 287, 289, 304, 305, 328 and 329.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellants | RP in person | |
| For the First and Second Respondents | No appearance | |
| For the Third Respondent | Ms J Davidson | Ms Caitlin Simper |
BEACH JA
NIALL JA
KENNEDY JA:
The appellants, RP and VS, are the mother and father of an eight year old daughter (‘the child’). On 3 June 2019, pursuant to the provisions of the Children, Youth and Families Act 2005 (‘the Act’), a family reunification order (‘FRO’) was made in relation to the child by Magistrate Smith, sitting in the Children’s Court. The FRO conferred parental responsibility for the child, and responsibility for the sole care of the child, on the Secretary.[2] At the time the FRO was made, the child was six and a half years old.
[2]Defined in s 3 of the Act to mean ‘the Department Head (within the meaning of the Public Administration Act 2004) of the Department’. The word ‘Department’ is also defined in s 3 of the Act. It is defined to mean ‘the Department of Human Services’.
In May 2020, the appellants filed an application for habeas corpus in relation to the child. The application was made against two individuals and the Department of Health and Human Services.[3] The application was defended by the Department on the basis that the Secretary has the sole parental responsibility of the child under the FRO, and that neither of the named individuals had any custody or control of her.
[3]At the time the FRO was made and at the time the matter was heard and determined in the Trial Division, the name of the Department referred to in s 3 of the Act was no longer the Department of Human Services.
Section 10 of the Public Administration Act 2004 empowers the Governor-in-Council to make orders establishing, abolishing, or changing the name of a Department.
Section 38AAA of the Interpretation of Legislation Act 1984 provides that if reference is made in an Act or subordinate instrument to a particular Department and under the Public Administration Act the name of the Department is changed, ‘the reference is, from the date when the name is changed and so far as it relates to any period on or after that date, to be taken to be a reference to the Department by its new name’.
Section 3 of the Administrative Arrangements Act 1983 empowers the Governor-in-Council to make orders containing provisions requiring a reference in any Act to a Department to be construed as a reference to a Department described in the order.
Relevantly, the Governor-in-Council has made a number of orders, the result of which is that when the current proceedings were in the Children’s Court and the Trial Division, the correct name of the Department was the Department of Health and Human Services. After orders were made in the Trial Division, however, the Department’s name changed to the Department of Families, Fairness and Housing. Nothing turns on these changes so far as this appeal is concerned, and no party sought leave to amend the name of the third respondent (the Department of Health and Human Services).
The application was heard, by a judge sitting in the Trial Division, over two days in July and August 2020. On 20 August 2020, the judge dismissed the application.[4] The appellants now appeal from the judge’s refusal to grant habeas corpus.[5] The appellants’ notice of appeal identifies two grounds of appeal: ground 1, which makes five complaints under the heading ‘errors of law’; and ground 2 which identifies three matters under the heading ‘incorrect formulation of legal propositions’.
[4]RP v Foreman [2020] VSC 522 (‘Reasons’).
[5]Leave to appeal is not required for an appeal from a refusal to grant habeas corpus: see s 14A(2)(a) of the Supreme Court Act 1986.
Relevant background
On 28 June 2018, pursuant to s 243 of the Act, the Department filed and served a protection application in respect of the child. The application was made on the basis that the child was ‘a child … in need of protection’ on the grounds specified in paragraphs (d) and (e) of s 162(1) of the Act. The Department later asserted that the reference to ground (d) in its application was ‘an administrative error’, and the application ultimately proceeded on grounds (c) and (e) of s 162(1).
Subsequently, Interim Accommodation Orders were made:[6] first, on 29 June 2018, placing the child in the care of her mother; and secondly, on 2 August 2018, after an alleged breach of the 29 June order, placing the child in the care of her maternal grandmother.
[6]See s 262 of the Act.
The protection application was heard on 23 and 24 May 2019. The application was contested by the appellants. Evidence was given from a number of witnesses, including the father’s drug counsellor, and previous child protection workers.
On 3 June 2019, the magistrate delivered reasons in which she found the protection application proven on the grounds set out in paragraphs (c) and (e) of s 162(1) of the Act. Paragraphs (c) and (e) in s 162(1) are as follows:
(c)the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type;
…
(e)the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child’s emotional or intellectual development is, or is likely to be, significantly damaged and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type;
In the course of her reasons, the magistrate identified ‘the primary protective concern’ as being ‘parental drug use’. Her Honour noted that this had been unable to be resolved while the parents refused to complete supervised drug screens. The magistrate also noted ‘associated concerns of family violence and mental health’, which she said the appellants also continued to refuse to acknowledge. Her Honour concluded that, in those circumstances, she was unable to return the child to the care of the appellants until these concerns were addressed. She found there was a breach of the Interim Accommodation Order made on 29 June 2018.
The magistrate then made the FRO. The FRO contained 12 conditions.[7] These included conditions requiring the appellants to accept visits from and cooperate with the Department; to submit to random supervised alcohol and drug testing; to abstain from alcohol or using illegal drugs ‘when with the child’; not to be affected by alcohol or illegal drugs when with the child; and not to threaten or assault departmental staff. The conditions also permitted the appellants to have contact with the child ‘for a minimum of two times per week at times and places as agreed between the parties’. This contact was to be supervised by the Department or its nominee, unless the Department assessed that supervision was not necessary.
[7]See s 287(1)(d) of the Act.
On 19 July 2019, the Department made an application for a Care by Secretary Order (‘CBSO’). A report supporting that application recommended that the child remain in ‘long-term placement’ with her grandmother, the child having been assessed at ‘significant risk of physical and emotional harm’ if returned to the care of either parent. The application for the CBSO was contested by the appellants. For various procedural reasons, it was not heard and determined until 31 August 2020.
The FRO was in force at the time the judge heard and determined the application for habeas corpus.[8] During the course of the hearing of this appeal, the Court was told that on 31 August 2020, pursuant to s 289 of the Act, the Children’s Court granted the Secretary’s application for a CBSO in relation to the child. The effect of the making of that order is that the Secretary continues to have the sole parental responsibility for the child, but pursuant to the CBSO and not the FRO which terminated on the making of the CBSO.[9]
[8]Reasons [37].
[9]See s 289(1B) of the Act.
The child remains in the care of her maternal grandmother, with whom she has resided since 2 August 2018 pursuant to the Interim Accommodation Order made on that day.
The judge’s reasons
The judge commenced her reasons with a description of the background circumstances and issues.[10] Importantly, at the time of publishing her reasons, the child remained the subject of the FRO (the CBSO not having been made until 11 days after the judge dismissed the appellants’ proceeding). The judge then summarised the parties’ submissions.[11]
[10]Reasons [1]–[20].
[11]Ibid [21]–[30].
Having identified relevant statutory provisions and authorities, the judge said:
The clear jurisdiction that the Children’s Court has to determine that a child is in need of protection and consequently make protection orders, and the FRO expressly conferring parental responsibility and sole care of the child on the Secretary, and the clear reasons of Magistrate Smith explaining why the FRO was made, all lead me to the unavoidable and obvious conclusion that the FRO was validly made, according to the requirements in the Act, and is therefore not a nullity or beyond power. As stated succinctly in the cases of Re Officer In Charge of Cells, ACT Supreme Court; Ex parte Eastman and PR, this case is one where I find that ‘[t]here is nothing at all in the material before me which provides an arguable basis for a finding that the order made by [the magistrate] was vitiated by absence or excess of jurisdiction or is otherwise void.’[12]
[12]Ibid [38] (citations omitted).
The judge held that, in these circumstances, the issuing of a writ of habeas corpus would not only be inconsistent with a valid order of the Children’s Court, it would undermine the operation of the Act which has been ‘expressly crafted with the best interests of the child as a paramount consideration’.[13]
[13]Ibid [39].
The judge then said that there was a second basis upon which habeas corpus should be refused.[14] This was that there were statutory rights available to the appellants under the Act to apply to have the FRO revoked,[15] to appeal the making of the FRO to the County Court[16] and to appeal to the Supreme Court on a question of law.[17]
[14]Ibid [40].
[15]See s 304 of the Act.
[16]See s 328(1)(a) of the Act — and noting that such an appeal is a rehearing de novo: see ss 328(6)(b) and 426(1) and (2) of the Act.
[17]See s 329(1) of the Act.
In addition to these avenues, the judge noted that there were review mechanisms available to the appellants in respect of the FRO under ss 331 and 333 of the Act.[18]
[18]Reasons [42].
Thus the judge concluded that even if there were grounds for a writ of habeas corpus, the appellants’ choice not to invoke their rights of appeal or review under the Act, or to seek judicial review pursuant to order 56 of the Supreme Court (General Civil Procedure) Rules 2015, ‘where such remedies were (and still are) available’,[19] would be grounds for declining to grant habeas corpus.
[19]Ibid [43].
The judge then referred to the third basis for refusing the appellants the relief they sought, saying:
Third, a writ of habeas corpus does not provide a remedy by way of judicial review, and is usually ill-suited as a basis for courts to inquire into administrative law grounds of review or a collateral attack on the judicial exercise of discretion which are traditionally the domain of judicial review proceedings. Rather, a writ of habeas corpus is a mechanism for summary determination focussed on whether the detention of the child is unlawful. Therefore, to the extent that the grounds of review relied upon by the Plaintiffs traverse into procedural fairness territory, rights under the Charter, or other provisions not directly relevant to the Children’s Court’s powers to grant protection orders, these grounds are plainly not appropriate and are irrelevant to establishing whether a writ of habeas corpus should issue.[20]
[20]Ibid [44].
The parties’ contentions
The appellants filed detailed written submissions in support of their appeal. In those submissions, they contended that this Court has ‘the right, power and authority to decide and determine the entire controversy and all the issues and questions involved in a case of which it has properly acquired jurisdiction’. From this premise, the appellants sought to have this Court examine every aspect of the proceeding, commencing with the ‘visit’ they received from two workers and two police officers on 22 June 2018.
The appellants’ submissions contain allegations of breaches of fiduciary duty, unlawful acts, trespass, lies, assault and battery, false imprisonment, and conversion. As best we understood it, the appellants contend that, by the Department’s taking of the child, the tort of conversion was committed. The appellants said that they accepted that the child was not ‘real property’. Their contention appeared to be that she was either ‘personal property’ or ‘chattels’, which the respondents had converted.
In an argument under the heading ‘jurisdiction’ the appellants contended:
In His infinite wisdom, God created man last, on the sixth day, so that man could not claim jurisdiction over what He made.
The appellants contended that Magistrate Smith refused to address the jurisdictional argument raised by them during the course of the hearing which resulted in the making of the FRO.
Under the heading ‘res judicata principle’, the appellants said that even if the FRO was made lawfully, res judicata and an estoppel said to arise from various notices ‘would bar any further action based on the same grounds by the same parties’.
Under the heading ‘conclusion’, the appellants contended that the FRO was gained fraudulently, and was thus improperly obtained. They also contended that the actions of the Department have caused ‘irreparable harm’ to the appellants and their daughter. The appellants prayed that this Court would ‘see that they were (and are) the most loving, caring, doting, attentive and gentle parents who have never ever, nor could ever hurt their precious daughter and order the respondents to immediately release and return [her] to their care and custody’.
During the hearing, the first appellant spoke on behalf of the appellants. She referred to, and invoked, what she described as ‘The Law’. Ultimately, the appellants relied upon their written case filed in this Court.
In its written response to the appellants’ written case, the third respondent (the Department) contended that the judge’s reasoning was ‘plainly correct’ and accorded with the principles set out in this Court’s decision in Dudley v A Judge of the County Court of Victoria.[21]
[21][2020] VSCA 179 (‘Dudley’).
Additionally, the third respondent submitted that, upon being satisfied that the child was lawfully in the care of the Secretary, the judge was bound to dismiss the application for habeas corpus. Even if, contrary to its submission, this Court were to conclude that the magistrate’s decision was attended by jurisdictional error, the third respondent submitted that the question would remain whether the child was a child in need of protection — a matter which would need to be determined in accordance with the Act, taking into account all of the relevant events and circumstances, including those which have occurred since 3 June 2019.
Consideration
Unfortunately for the appellants, the judge was right, for the reasons she gave, to refuse the appellants’ application for habeas corpus. The child is, and has at all relevant times since 3 June 2019 been, lawfully in the care of the Secretary and residing with her maternal grandmother. She is not detained or in custody and therefore a writ of habeas corpus is not available. In any event, the care arrangements are lawful pursuant to orders of the Children’s Court. That conclusion also precludes the appellants from obtaining habeas corpus in respect of the child in these proceedings.[22]
[22]See generally, Dudley [2020] VSCA 179, [39]–[45].
To the extent that the appellants wish to reagitate issues that have previously been determined against them, the Act provides a number of avenues which they might have taken, or might yet take. In her reasons for judgment, the judge identified the various courses open to the appellants in respect of the FRO.
The FRO is no longer in force. The Act, however, contains provisions relating to the review and revocation of CBSOs. The CBSO in this case is one which exceeds 12 months, and thus is reviewable 12 months after it was made in accordance with s 298 of the Act. Additionally, under s 305 of the Act, the appellants may apply for the revocation of the CBSO.
For completeness, we would also note the provisions in Part 4.11 of the Act (ss 328-333) enabling the commencement of appeals and various reviews.
As we have already observed, the FRO which the appellants sought to attack in their written case in this Court has been set aside. After the conclusion of the hearing before the judge, the Department’s application for a CBSO was heard. The CBSO was, as we have also already said, made 11 days after her Honour delivered judgment. In the absence of any material to the contrary, one might infer that the CBSO was made because, postdating the evidence relied upon for the habeas corpus application, there was evidence that, at the time of the making of the CBSO, the child was a child in need of protection. This is because the relevant basis provided in s 274 of the Act for the making of the CBSO in this case is that the child is in need of protection.
In such circumstances, there is simply no basis upon which this Court could, on the material filed in this appeal, set aside the CBSO. The CBSO can only have been made on 31 August 2020 because the Children’s Court concluded that, at that time, the child was a child in need of protection. The existence of the CBSO, made after the conclusion of the proceeding in the Trial Division, provides a further barrier to the making of any order in this Court which would result in the child being immediately returned to the appellants. The granting of habeas corpus would be directly inconsistent with, and contrary to, the terms of a currently enforceable CBSO.[23]
[23]Ibid [44].
Finally, we accept the third respondent’s submission that even if we were persuaded that there was some basis for setting aside any of the orders previously made, this would not necessarily result in the child being immediately returned to the appellants. The question of the best interests of the child, which for the purposes of the Act are paramount,[24] and whether the child is in need of protection,[25] would need to be redetermined in the light of all of the circumstances — including those as they presently exist.
[24]See s 10(1) of the Act.
[25]See s 162(1) of the Act.
Conclusion
The appeal must be dismissed.
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SCHEDULE OF PARTIES
| RP | First Appellant |
| VS | Second Appellant |
| and | |
| MARYANNE FOREMAN | First Respondent |
| EMILY MORVELL | Second Respondent |
| DEPARTMENT OF HEALTH AND HUMAN SERVICES | Third Respondent |
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