Secretary Department of Families, Fairness and Housing v WD
[2025] VSC 537
•28 August 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S ECI 2023 06014
| IN THE MATTER of an application in the parens patriae jurisdiction of the Supreme Court of Victoria | |
| BETWEEN | |
| SECRETARY TO THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING | Applicant |
| v | |
| WD | Respondent |
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JUDGE: | Elliott J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 19, 28 August 2025 |
DATE OF JUDGMENT: | 28 August 2025 |
CASE MAY BE CITED AS: | Secretary Department of Families, Fairness and Housing v WD |
MEDIUM NEUTRAL CITATION: | [2025] VSC 537 |
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OPEN COURTS – Parens patriae jurisdiction – Child in the care of the Secretary to the Department of Families, Fairness and Housing – Housed in secure welfare service – Application for further hearings to be conducted in closed court – Inherent jurisdiction – Open Courts Act 2013 (Vic), ss 28, 29 – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
Forthe applicant | J Davidson | Department of Families, Fairness and Housing |
Forthe respondent | A McGregor (solicitor) | Dowling McGregor |
For the amicus curiae | A Dinelli KC with | G Tivisini, General Counsel, Commission for Children and Young People |
HIS HONOUR:
A. Introduction, including context of application for closed-court order
The respondent, WD,[1] is presently located in a secure residential home in suburban Melbourne in the care of the Secretary to the Department of Families, Fairness and Housing (“the Secretary”). WD has been the subject of supervision pursuant to the court’s parens patriae[2] jurisdiction since late 2023. The hearing today is one of a series of hearings that have been held and will continue to be held in order to ensure that appropriate orders are made for the care and development of WD for the immediate future and beyond.
[1]A pseudonym has been used to protect the identity of WD. Initially, this pseudonym was ordered to ensure compliance with s 534(1)(a)(ii) of the Children, Youth and Families Act 2005 (Vic). It is adopted in the court’s inherent jurisdiction to maintain the child’s anonymity.
[2]Literally meaning “the parent of his or her country”: Encyclopedic Australian Legal Dictionary (online at 8 September 2025) ‘parens patriae’.
The hearings to date (which commenced in the criminal division of the court in November 2023 when WD sought bail) have all been conducted in open court. Subsequent to bail being granted, an application was made for WD to be the subject of the parens patriae jurisdiction of the court; and orders were accordingly made on 19 December 2023.
Previously, an application made in November 2023 for a proceeding suppression order was refused.[3] That application also included a proposed order closing the court under s 30(1) of the Open Courts Act 2013 (Vic) (“Open Courts Act”), but at the hearing it was not pursued.[4] In March 2024, a further application for a suppression order preventing publication of certain matters was dismissed.[5] On that occasion, neither a broader, more general, proceeding suppression order nor a closed-court order was sought.
[3]WD v Director of Public Prosecutions (No 2) (2023) 72 VR 589, 622-625 [115]-[126]. See 590-593 [2]-[11] for the background on why WD initially came before this court.
[4]In not doing so on that occasion, senior counsel for the Secretary informed the court that the Secretary was acutely aware of the open justice principle and had formed a tentative view that matters could be addressed in court in a manner that would allow the hearing to remain public: ibid, 594 [14].
[5]WD v Director of Public Prosecutions (No 4) [2024] VSC 144, [44]-[57].
For the reasons that follow, the Secretary’s application will be dismissed.
B. Secretary’s premise for further hearings to be in closed court
Pursuant to the exercise of power in the court’s inherent jurisdiction, the Secretary now seeks orders for the court hearing to be closed. This relates not only to the present hearing but also future hearings concerning WD while she remains in the care of the Secretary and the subject of the parens patriae jurisdiction of the court.
In doing so, the Secretary sought to rely upon 2 passages from the landmark decision of Scott v Scott,[6] namely:[7]
In the [case] of wards of court … the Court is really sitting primarily to guard the interests of the ward … Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in order to attain this primary object, that the court should exclude the public. The broad principle that ordinarily governs it therefore yields to the paramount duty, which is the care of the ward …
(Emphasis added.)
and:[8]
Upon this head it is true that to the application of the general rule of publicity there are three well recognized exceptions which arise out of the nature of the proceedings themselves.
The three exceptions which are acknowledged to the application of the rule prescribing the publicity of Courts of justice are, first, in suits affecting wards; … the first two of these cases, my Lords, depend upon the familiar principle that the jurisdiction over wards … is exercised by the judges as representing His Majesty as parens patriae. The affairs are truly private affairs; the transactions are transactions truly intra familial; and it has long been recognized that an appeal for the protection of the Court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs.
[6][1913] AC 417.
[7]Ibid, 437.3 (Viscount Haldane LC).
[8]Ibid, 482.9–483.3 (Lord Shaw of Dunfernline).
For completion, shortly after this it was also said:[9]
But I desire to add this further observation with regard to all of these cases, my Lords, that, when respect has thus been paid to the object of the suit, the rule of publicity may be resumed. I know of no principle which would entitle a Court to compel a ward to remain silent for life in regard to judicial proceedings which occurred during [her or his] tutelage, … to remain perpetually silent with regard to judicial proceedings which occurred during the period of [her or his] incapacity.
(Emphasis added.)
[9]Ibid, 483.5.
The Secretary also referred to the dissenting judgment of Heydon J in Cattanach v Melchior. After referring to the decision of Scott v Scott and the second passage set out above,[10] amongst other cases, his Honour stated:[11]
Underlying these explanations is a perception that the public disclosure of evidence and argument in wardship proceedings, whose primary purpose is the welfare of the ward, can be damaging to the welfare of the ward.
(Emphasis added.)
[10](2003) 285 CLR 1, 123 [336].
[11]Ibid.
Before turning to other authorities, a number of observations should be made at this juncture. The House of Lords in Scott v Scott overturned a finding of contempt on the basis that an order made at first instance that the hearing of a nullity petition take place in camera was made without jurisdiction. Accordingly, the observations set out above are obiter dicta. Further, neither passage relied upon asserts any principle or rule of practice which imposes an absolute requirement that the court must conduct hearings in closed court when exercising its parens patriae jurisdiction. Viscount Haldane expressly referred to “often” (not always) and necessity in discussing the court serving the primary object in its parens patriae jurisdiction of the care of the child. Equally, Lord Shaw referred to “truly domestic affairs” not being publicised and then qualified what was stated in the passage relied upon by the Secretary with the further passage set out above.
Further, nothing stated by Heydon J about the position to be adopted is unequivocal; his Honour noted that publication “can” be damaging, not that it necessarily is or will be.[12]
[12]For completeness, another case referred to by Heydon J was In re C (a minor) (Wardship: Medical Treatment) (No 2) [1990] Fam 39, 46H (Lord Donaldson of Lymington MR). The passage Heydon J quoted is also in equivocal terms and speaks of what is “not normally given in open court”.
In support of the position that an order should be made closing the court, reference was made by the Secretary to a number of New South Wales Supreme Court cases.[13] Counsel also referred to the case of Re Beth,[14] a case which was conducted in closed court with the judgment originally published on a confidential basis so the parties could specify any concerns about identifying information before it was published more broadly.[15]
[13]Hunter New England Local Health District v C [2024] NSWSC 929, [50]-[53] (Parker J); Re Emma [2023] NSWSC 1088, [3] (Robb J); Re Rosie [2022] NSWSC 1001, [76] (Meek J); Secretary of the Department of Family and Community Services; Re Julian [2014] NSWSC 399, [22] (Stevenson J).
[14](2013) 42 VR 124 (Osborn JA).
[15]This is not apparent from the reasons of Osborn J, but counsel appearing in this matter also appeared in Re Beth and informed the court that this is what had occurred. Beth is a pseudonym.
C. Hearings concerning a child need not be in a closed court
By way of general summary, these cases stand for the proposition that the “usual” position concerning a hearing conducted in the parens patriae jurisdiction is that a closed court order is made. However, the making of any such order is far from axiomatic.
In Director-General, Department of Community Services; Re Jules (“Re Jules”),[16] Brereton J was exercising the court’s parens patriae jurisdiction and considered whether or not the court ought to be closed for the hearing. The distinction between a non-publication order and closing the court was referred to, the latter meaning that proceedings were conducted “effectively in secret”.[17]
[16](2008) 40 Fam LR 122.
[17]Ibid, 130 [24].
Acknowledging that his Honour was acting under different legislation,[18] Brereton J referred to the practice in New South Wales of an application “practically invariably” being made for closed-court orders and that in such cases those orders were “at least very frequently, if not invariably, made”.[19] Having made this observation, his Honour stated that great caution was required. With respect, I agree.
[18]Civil Procedure Act 2005 (NSW), s 71C.
[19]Re Jules (2008) 40 Fam LR 122, 130 [24].
His Honour continued by noting the significant public interest which typically arises in cases of this type, noting they have significant informative and educative functions. His Honour considered it important that what the court does in this jurisdiction be open to public knowledge, information and scrutiny.[20] Further, his Honour referred to proceedings in the Family Court of Australia which dealt with many cases concerning the welfare, custody and guardianship of children. In this regard, he observed that such cases are not heard in a closed court but were protected by a statutory prohibition on publication that would identify the parties.[21] Having made these observations his Honour continued:[22]
I do not see why proceedings in the parens patriae jurisdiction, including for medical treatment orders, should as a general rule be heard in closed court. There may no doubt be some cases in which that course is appropriate, but ordinarily sufficient protection of the child will be achieved by a non-publication order of the type to which I have referred.
[20]Ibid.
[21]Likewise, in the Children’s Court of Victoria many cases are heard in open court, but subject to the restrictions on publication: see fn 1 above.
[22]Ibid, 130 [25].
Brereton J reiterated this position in Director-General, Department of Community Services v Thomas.[23]
[23](2009) 41 Fam LR 220, 225 [12].
His Honour is not alone in holding these views. In Hospital v T,[24] the passages of Scott v Scott relied on by the Secretary (as set out above)[25] were referred to, before Douglas J continued by observing that the statements by their Lordships were simply the starting point. After quoting from Re Jules,[26] Douglas J continued by stating there was much to be said for the approach that proceedings can serve an educative role in the public interest.[27] Having made that observation, Re Jules was distinguished for reasons that it is unnecessary to go into.
[24][2015] QSC 185.
[25]See par 6 above.
[26][2015] QSC 185, [6]–[7].
[27]Ibid, [8].
A more recent case of Legal Profession Conduct Commissioner v Belperio (No 2)[28] also referred to Brereton J’s remarks in Re Jules with approval. In so doing, after referring to passages in Scott v Scott, the following was stated:[29]
In both examples, if the open justice principle were not modified, justice could not be done in litigation of that kind. Even then, the modification of open justice is not inexorable or absolute. While, as a matter of ordinary course, proceedings in the Court’s parens patriae jurisdiction, for instance, may be heard in closed court, the protections usually afforded by statute against publication in such matters may well be enough to protect the interests of the child the subject of the Court’s jurisdiction.
(Emphasis added.)
D. Primacy of open justice, free communication and disclosure of information must be considered
[28][2024] SASCA 133.
[29]Ibid, [30] (Kourakis CJ, with whom Bleby JA and Stein AJA relevantly agreed) (citation omitted).
An additional factor in this court exercising its jurisdiction is the applicability of the Open Courts Act. Section 29 of that Act provides:
Jurisdiction and powers of courts and tribunals to regulate proceedings
(1) Subject to section 28, nothing in this Part limits or affects any jurisdiction or any power that a court or tribunal has apart from this Act to regulate its proceedings.
(2) In this section—
jurisdiction includes any implied jurisdiction and, in the case of the Supreme Court, its inherent jurisdiction;
power includes any power at common law.
Relevantly, section 28 provides:
(1) In determining whether to make any order, including a closed court order, a court or tribunal must have regard to the primacy of the principle of open justice and the free communication and disclosure of information which require the hearing of a proceeding in open court.
Accordingly, although the court is not being asked to make a “closed court order” as that term is defined in section 3 of the Open Courts Act,[30] pursuant to section 28(1) any consideration of an application to close the court for a hearing or part of the hearing must have regard to the primacy of the principle of open justice and the free communication and disclosure of information underlying the requirement of hearings ordinarily being held in open court.
[30]The definition confines the term as used in the Act to an order made under Part 5 of the Act.
In this regard, the Secretary referred to section 85 of the Constitution Act 1975 (Vic), which relevantly provides:
(1) Subject to this Act the Court[31] shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever and shall be the superior Court of Victoria with unlimited jurisdiction.
…
(5) A provision of an Act, other than a provision which directly repeals or directly amends any part of this section, is not to be taken to repeal, alter or vary this section unless—
(a)the Act expressly refers to this section in, or in relation to, that provision and expressly, and not merely by implication, states an intention to repeal, alter or vary this section; …
(Footnote omitted).
[31]This is a reference to the Supreme Court of Victoria: Constitution Act, s 75(1).
The Secretary accepted that section 28(1) of the Open Courts Act applies where the court exercises power in its inherent jurisdiction to make an order closing the court, but contended that the absence of any reference in that provision to section 85 of the Constitution Act 1975 (Vic) means that section 28 “must be treated as a procedural requirement only”. That is, section 28(1) of the Open Courts Act does not alter the court’s power to make an order in its parens patriae jurisdiction closing the court.
As to what was intended to be the scope of the operation of section 28 and the Open Courts Act more generally, the following was said in the second reading speech:[32]
The bill consolidates and reforms the general statutory powers for the [Supreme Court] to make suppression orders and closed-court orders. It creates general presumptions in favour of disclosure of information and of holding hearings in open court; presumptions to which courts and tribunals must have regard when considering whether to make a suppression order or a closed-court order under the powers in the bill or in the exercise of the Supreme Court’s inherent jurisdiction.
…
The Supreme Court will retain its powers to make suppression and closed-court orders in the exercise of its inherent jurisdiction, but subject to the presumptions in favour of disclosure and hearings in public and to the procedural requirements set out in part 2 of the bill.
(Emphasis added.)
[32]Victoria, Parliamentary Debates, Legislative Assembly, 27 June 2013, 2417.8 col 2-2418.8 col 1 (Robert Clark, Attorney-General).
Nothing turns on whether complying with section 28 is characterised as a procedural matter or is more substantive. The question of whether a hearing (or part of a hearing) is to be conducted in an open or closed court is procedural in nature. Both the express wording of the provision and the extrinsic material indicate that Parliament intended the primacy of open justice to be taken into account when the court is considering making an order that may affect the openness of any hearing or the freedom of any disclosure or publication relating to that hearing.
E. Approach to WD’s circumstances in this proceeding at this time
It may be said without controversy that each case must be considered in light of its own facts. Further, the circumstances must be considered under the rubric that the court must act in the best interests of the child and take appropriate steps consistent with her proper care. However, it does not follow from this, or any of the authorities referred to, that the court must close a court because the hearing is being conducted in the parens patriae jurisdiction of the court.
With the principles referred to above and the applicability of the Open Courts Act in mind, it is necessary to turn to the particular circumstances before the court today and consider whether it is appropriate to make an order for this hearing and future hearings to be conducted in closed court.
Orders have already been made for the confidentiality and prevention of publication of certain documents previously relied upon in this proceeding. Further, an order will be made today, subject to further order, requiring the court file and each document within it to be kept confidential and not be available for production or inspection to any person not a party to the proceeding.[33]
[33]This order will not preclude the Secretary from providing documents to persons providing services or supports for WD.
In addition, the parties have substantially agreed the orders to be made on this occasion. Having read the supporting affidavits and written submissions, and heard the submissions on 19 August 2025, I am inclined to make those orders. Any further discussion required with respect to those orders is likely to be able to be conducted in open court without it being necessary to disclose the substance of those orders.
Moreover, the considerable publicity to date is a relevant consideration in determining whether or not future hearings should be conducted in a closed court. There has been considerable public interest for a number of years about the manner in which WD has been treated under the care of the Secretary.[34] There is a real risk that if all hearings are now to be held in a shroud of secrecy, this would give rise to speculation, misunderstandings, exaggerations and falsehoods,[35] as well as having the potential to materially undermine the public’s confidence in the court’s processes.[36] This is particularly so given WD has recently expressed her own dissatisfaction with the processes that she is presently subjected to.
[34]WD was the subject of a “care by Secretary” order in 2019, having first come to the Secretary’s attention in 2011.
[35]Compare John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 481 (McHugh JA, with whom Glass JA agreed).
[36]Director of Public Prosecutions v Young (No 3) [2025] VSC 423, [13] and the cases there cited.
In reaching this conclusion, I have read and taken into account the affidavits filed in support of the Secretary’s application. This included opinion evidence of the Chief Practitioner (as a delegate of the Secretary) that it is not in WD’s best interests for any further information regarding WD to enter the public domain. Without articulating the details referred to in that evidence in these open reasons, I observe that the matters raised by the Chief Practitioner relating to the history of this proceeding and WD’s access to the internet in the foreseeable future will remain regardless of whether the court is closed at this juncture.
F. Confidentiality generally to be maintained
To be clear, nothing contained in this ruling detracts from the importance of keeping certain matters (indeed presumably most matters) pertaining to WD’s personal circumstances confidential. Naturally, the position may change, including the perceived need for confidentiality in the future.[37] Steps may be taken, including possibly closing the court for part of a hearing or for a particular hearing, if that is necessary to allow matters to be ventilated in a way that does not invade WD’s privacy or otherwise affect her rights as a child. However, in the particular circumstances of this case it is not appropriate to make a blanket order that all hearings to be conducted in this proceeding must be held in a closed court.
[37]See, for example, par 7 above, referring to Scott v Scott [1913] AC 417, 483.5.
G. Conclusion and ongoing consideration of WD’s position
Accordingly, the application by the Secretary for further hearing of this proceeding to be conducted in a closed court is dismissed.
Some parting words.
This ruling is obviously interlocutory. For reasons it is unnecessary to go into, the solicitor who appeared today (and has very constructively dealt with this matter on behalf of WD for some time) was unable to obtain any instructions on WD’s attitude to this application. Beyond stating that he found the Secretary’s submissions “powerfully attractive”, the position adopted in relation to the application was essentially passive. The parties should not hesitate to reagitate the issue of closing the court at any future hearing if further developments come to light. The same applies to the Commissioner for Children and Young People who, on this occasion, opposed the application for the court hearing to be closed.
Finally, it is noted that while the Secretary initially sought an order assigning a new pseudonym to WD, that application was ultimately not pressed at the hearing.
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