RP & VS v Foreman - [2021] VSCA 115

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] VSCA 115
Decision Date: 7 May 2021

CaseChat Overview and Summary

The applicants, RP and VS, sought a prerogative writ of habeas corpus in the Federal Circuit and Family Court of Australia, challenging a Family Reunification Order made under the Children, Youth and Families Act 2005. The order placed their child with the respondent, the Department of Communities, Child Safety and Disability Services, and the applicants argued that the order was not in the child's best interests. The primary judge dismissed the application for habeas corpus, and the applicants appealed this decision. The appeal centred on whether the court should grant the writ of habeas corpus to challenge the Family Reunification Order.

The central legal issue was whether the applicants had an appropriate legal remedy available to them, given that they had not exercised alternative rights of appeal and review under the Children, Youth and Families Act 2005. The applicants argued that the Family Reunification Order was not in their child's best interests and that the court should grant habeas corpus to allow them to seek a review of the order. The Full Court examined the statutory scheme and determined that the applicants had alternative rights of appeal and review available to them, which they had not exercised. The court also found that the applicants had not exercised their right to apply for revocation of the order.

The Full Court held that the applicants had not demonstrated that habeas corpus was the appropriate remedy in the circumstances of this case. The court found that the applicants had alternative rights of appeal and review available to them under the Children, Youth and Families Act 2005, which they had not exercised. The court also noted that the applicants had not exercised their right to apply for revocation of the Family Reunification Order. Given these findings, the Full Court dismissed the appeal and upheld the primary judge's decision to refuse the writ of habeas corpus. The court concluded that the applicants had not demonstrated that habeas corpus was the appropriate remedy in these circumstances.

Orders