Secretary, Department of Human Services v Children's Court of Victoria
[2012] VSC 422
•14 SEPTEMBER 2012 (revised 21 September 2012)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
S CI 2012 04989
| SECRETARY, DEPARTMENT OF HUMAN SERVICES | Plaintiff |
| v | |
| CHILDREN’S COURT OF VICTORIA AND OTHERS | Defendants |
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JUDGE: | DIXON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 SEPTEMBER 2012 | |
DATE OF JUDGMENT: | 14 SEPTEMBER 2012 (revised 21 September 2012) | |
CASE MAY BE CITED AS: | SECRETARY, DEPARTMENT OF HUMAN SERVICES v CHILDREN’S COURT OF VICTORIA & ORS | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 422 | 1st revision: 21 September 2012 |
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Administrative Law – Judicial review – Children’s Court of Victoria – Application to vary access rights under protection order – Submissions hearing – Whether want of procedural fairness – Children, Youth and Families Act 2005 (Vic) ss 8(1), 10, 215(1), 299, 300, 301, 302, 530.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E Nekvapil | Department of Human Services |
| For the Second Defendant | Mr P Brown | Nicole Amad |
| For the Fourth Defendant | Ms L Steiner | Fleur Ward & Partners |
| For the Fifth and Sixth Defendants | Self-represented |
HIS HONOUR:
In certain circumstances, the Children’s Court of Victoria deals with applications by a procedure that it calls a ‘submissions hearing’. On a submissions hearing, the court does not require sworn evidence and an application is determined after the court has heard submissions from the parties. The issue in this proceeding is whether an order of the court concerning access rights that was determined on a submissions hearing should be quashed for want of procedural fairness.
The child, who is 9, is in foster care and lives in out-of-home care subject to a Custody to Secretary order under the Children, Youth and Families Act 2005. On 29 August 2012, the Children’s Court varied the conditions of the Custody to Secretary order to grant access to his first cousin and his paternal grandmother.
On 8 September 2010, his grandmother obtained an interim accommodation order. That order was breached when the child’s father, removed the child from his grandmother’s care. By November 2010, the child was accommodated in an out-of-home placement with the foster care agency. On 14 January 2011, the Children’s Court made a Custody to Secretary protection order for a period of 12 months, after finding that the child was a child in need of protection. The child’s parents had not attended court. On 6 January 2012, the Secretary filed an application to extend the protection order for a further two years. In the course of a directions hearing in relation to that application on 17 July 2012, the grandmother and the first cousin foreshadowed an application by to vary the existing protection order to permit them access to the child. The court scheduled a final hearing of the Secretary’s application to extend the protection order for 29 August 2012, on an estimate of three days.
By 29 August 2012, the foreshadowed application to vary the protection order had not been filed. On the extension application, counsel appeared for the Secretary and for the child. The first cousin and the grandmother attended, without representation, seeking to be joined as parties to the proceeding. Neither of the child’s parents attended court. The child’s mother has taken no interest in attending hearings and his father was unable to attend due to illness, but was represented by counsel. When the extension application, which could not proceed in the absence of the child’s parents, was called on before the magistrate, she ordered that the grandmother and the first cousin be joined to the proceeding and stood the application down, apparently for negotiation about access.
During the morning, the father’s legal representatives filed and served the application to vary the protection order seeking ‘access conditions for [the cousin] and [the grandmother]’. The application was made returnable immediately.
When the matter was called back to court, the magistrate informed the parties that the access variation application was proceeding as a submissions hearing, apparently a decision that is made administratively and not by the magistrate. Counsel for the Secretary immediately objected, on grounds of procedural fairness, to that course as the Secretary had all witnesses available for the scheduled final hearing of the extension application, and wanted to call evidence on the access application. The magistrate then ascertained what access was being sought by the grandmother and the cousin before ruling against the Secretary’s application that evidence be taken.
The transcript suggests three considerations influenced that decision. First, the magistrate expressed her understanding, perhaps a misunderstanding, that the Secretary had refused to discuss any access with the parties. Second, the magistrate informed the parties that the extension application would not be re-listed for contest until February 2013. Third, it seemed in the child’s best interests that the matter be resolved that day.
Again, counsel for the Secretary objected, noting that she had two witnesses in court who could give relevant evidence. The magistrate’s response shows that a further consideration influenced her decision, namely pressure of court business, as she suggested evidence could not be taken because there was another submissions hearing to be resolved that day. Although counsel for the Secretary referred again to the desirability of taking evidence, as a matter of procedural fairness, the application was resolved on the basis of submissions. Counsel for the Secretary properly accepted the ruling and made submissions on the application.
A number of reports and other material, filed with the court for the extension application, had been considered by the magistrate. The magistrate invited each of the grandmother and the cousin to explain their circumstances and why they sought access, which they did. Each of counsel for the child and for the father supported the application. The transcript shows that the represented parties made proper submissions; that is, they put contentions based upon their instructions or the materials that had been filed with the court. The material received from the grandmother and the cousin was factual information elicited by the magistrate’s questioning. It was unsworn evidence. The other parties, particularly the Secretary, had neither specific notice of what would be said nor the opportunity to challenge statements made by cross-examination. It was erroneous, if this be what occurred, to have regarded what was said by the grandmother and the cousin to the court as submission merely because those persons had just been joined as parties to the application. Notwithstanding the want of opportunity for cross-examination, there were occasions when the magistrate was informed of factual inaccuracies in statements made to the court by the grandmother and the cousin. Counsel for the Secretary, who is very experienced in this jurisdiction, put, in summary form, many of the matters that the Secretary now contends, on affidavit, should have been put to the court on evidence from her witnesses.
In allowing the application for access, the magistrate expressed very brief reasons, noting her obligation to look at what was in the child’s best interests. The magistrate made her own assessment, announcing that the cousin ‘seemed to be a very sensible young woman and very concerned for the child’s welfare’, while the grandmother ‘also seems very concerned for the child’s welfare’, adding that it seemed to be important that the family bond be maintained. The magistrate did not refer to any other consideration found in s 10(3) of the Children, Youth and Families Act 2005 (Vic).
Announcing that access for 7 hours on one weekend day would be permitted, the magistrate invited the cousin to nominate what day suited her and in due course the order under challenge was pronounced. Counsel for the Secretary was not given an opportunity to address any issues arising about when access would occur. When announcing the reasons for her decision, the magistrate said nothing about any of the grounds of opposition to access submitted by counsel for the Secretary.
It has long been established that an essential character of procedural fairness is the opportunity for a party to have a reasonable opportunity of presenting his or her case. The requirements of natural justice in the sense of the content of procedural fairness depend on many matters including the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting and the rights and interests that are in issue.[1] In International Finance Trust Company Ltd v New South Wales Crimes Commission,[2] French CJ observed:
Procedural fairness or natural justice lies at the heart of the judicial function. … It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it.
[1]Russell v Duke of Norfolk (1949) 1 All ER 109, 118; R v Commonwealth Conciliation and Arbitration Commissioner; Ex parte Angliss Group [1969] 122 CLR 546, 552-3; Kioa v West (1985) 159 CLR 550, 584-585.
[2](2009) 240 CLR 319, 354.
A preliminary observation may be made that the exercise of powers under the Children, Youth and Families Act 2005 by the Children’s Court attracts the principles of procedural fairness.[3] It is well established that the content of the common law requirements of natural justice and procedural fairness may vary, requiring adjustment according to the circumstances of the particular case.[4] What may constitute an opportunity to be heard may be informed by the conduct of the parties prior to or during a hearing. An evaluation of the realities and not the legalities of the situation is required when dealing with the question of what fairness demands in the circumstances.[5] The Court of Appeal in MH6 v Mental Health Review Board & Anor[6] has recently emphasised that the court must identify the procedural consequences for it of the rules of procedural fairness by focussing on the relevant statutory framework and the exigencies of the particular case. The provisions of the Act substantially determine the application and content of the duty to act fairly required on the application that was before the magistrate.
[3]Secretary, Department of Human Services v Sanding [2011] VSC 42, 37 [129] (22 February 2011); see also Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31, [65], [66], [68] and [97].
[4]Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 91; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585 (Mason J); Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, 503-504 (Kitto J); R v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group [1969] HCA 10; (1969) 122 CLR 546, 552-553.
[5]MH6 v Mental Health Review Board & Anor [2009] VSCA 184; (2009) 25 VR 382, 391 [29]-[30].
[6]Ibid 391 [31].
Of particular relevance in the current circumstances are the following provisions. The Family Division of the court is empowered to conduct proceedings informally, informing itself on a matter in such manner as it thinks fit.
Section 215 provides:
215 Conduct of proceedings in Family Division
(1) The Family Division—
(a)must conduct proceedings before it in an informal manner; and
(b) must proceed without regard to legal forms; and
(c)must consider evidence on the balance of probabilities; and
(d)may inform itself on a matter in such manner as it thinks fit, despite any rules of evidence to the contrary.
Section 530 provides:
530 Power to adjourn proceeding
…
(8)The Court must proceed with as much expedition as the requirements of this Act and a proper hearing of the proceeding permit.
(9)The Court should avoid the granting of adjournments in Family Division proceedings to the maximum extent possible.
(10)The Court must not grant an adjournment of a proceeding in the Family Division unless it is of the opinion that—
(a) it is in the best interests of the child to do so; or
(b) there is some other cogent or substantial reason to do so.
(11)In deciding whether and for how long to adjourn a proceeding under this section, the Court must have regard to the requirements in subsections (8) to (10).
Part 1.2 of the Act articulates principles that guide the court in making any decision or taking any action under the Act.[7] The primary guiding principle is that the best interests of the child must always be paramount.[8] The statute directs that when determining whether a decision or action is in the best interests of the child, the need to protect the child from harm to protect his or her rights and to promote his or her development (taking into account his or her age and stage of development) must always be considered. The statute then prescribes 18 separate matters to be considered when determining what decision to make or action to take in the best interests of the child that I need not set out in full in this judgment.[9]
[7]Section 8(1) of the Act.
[8]Section 10(1) of the Act.
[9]See s 10(3) of the Act.
Initially, the application before the court was to extend a protection order made under s 275 of the Act following a finding in accordance with s 274 of the Act; that the child is in need of protection. The Secretary may apply under Division 10 of Part 4.9 of the Act to extend protection orders. It was that application that was listed for a three day contest, which could not proceed due to the illness of the father, but this court is not concerned with that application. The child’s parent may apply to vary the conditions of a protection order,[10] and on such application the court may vary any of the conditions included in the order or add or substitute a condition but must not extend the period of the order or, in this case, make any change to the custody of the child.[11] The court is also empowered, in exceptional circumstances, to vary any of the conditions included in a Custody to Secretary order or add or substitute a condition pending the final determination of an application,[12] within the same limitations as apply under the preceding section, to which I have already referred.
[10]Sections 299 and 300 of the Act.
[11]Section 301 of the Act.
[12]Section 302 of the Act.
The second and fourth defendants submitted that the effect of these provisions was that the Children’s Court was not obliged, in discharging its obligation of procedural fairness, to receive evidence on the hearing of an application for an interim variation to a custody order. Further, those parties contended, support for the procedure that the court below adopted is found in earlier decisions of this court, which considered ‘submissions hearings’.
I reject the submission that, when granting access to the grandmother and the cousin the court was acting under s 302 of the Act and making an interim variation of the protection order. The determination by the court was not interim, pending the final determination of the application, as the record makes clear. The ‘application’ referred to in s 302 is the application made under s 300, not the application made under s 293. The court’s determination of the variation of the protection order to allow for access for the grandmother and the cousin was the final hearing of that application.
There may well be circumstances where it would be appropriate for an interim application under s 302 of the Act to be heard on the basis of submissions before evidence is, or without evidence being, before the court, at the time when the interim decision is made. Of its nature, an interim decision is likely to only operate until such time as a proper basis for an interlocutory or final decision on the question in issue has been placed before the court. That is so because without appropriate evidence[13] the court cannot properly discharge its obligations under s 8(1) of the Act to apply best interests principles.
[13]Using that term widely having regard to s 215(1) of the Act.
The rules of procedural fairness do not interfere with the court’s obligation to consider best interests principles. As Bell J said in Secretary, Department of Human Services v Sanding[14] where the jurisdiction is one in which the interests of the child are paramount, the particular content and application of the rules of natural justice will reflect the nature of that jurisdiction and influence the exercise of the court’s procedural discretion. However, that influence is constrained in the way described by Brennan J in J v Lieschke[15] as: ‘In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child’, but only ‘so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred’.[16]
[14][2011] VSC 42, 40 [135]-[147].
[15](1987) 162 CLR 447, 457 (Mason, Wilson, Deane and Dawson agreeing).
[16]Applied in Separate Representative v E (1993) 114 FLR 1, 14. See also in Re Kaye (Infants) [1965] AC 201; Birmingham Juvenile Court; Ex parte G (Minors) [1990] QB 573.
I agree with Bell J’s conclusions in Sanding. While the applicable notions of natural justice and procedural fairness afforded to the parties may be influenced by the overriding consideration of the best interests of the child if the purposes for which the jurisdiction is conferred may be frustrated, the parties must still be afforded procedural fairness. Any limitation on procedural fairness considered appropriate in the circumstances of a particular case ought to be transparently balanced against the anticipated risk of frustration of the purposes for which the jurisdiction is conferred, particularly where, as in the case of this Act, the legislature has, at some length, articulated the best interests principle that is to guide the court’s decisions.
Earlier decisions of this court that have considered ‘submissions hearings’ must be considered in context. Each of these decisions was carefully considered in Sanding when Bell J concluded that disposition of the application that was being reviewed in that proceeding by a submissions hearing did not involve a want of procedural fairness. In my view, as the circumstances of the application that I am concerned with differ from those in Sanding and in the earlier decisions, the submissions hearing did involve a want of procedural fairness. Before stating my reasons, I will consider those earlier decisions.
In Grandell v Hartrick[17] the relevant application was for interim accommodation orders and the court considered that the application was fairly determined as it was not incumbent upon the magistrate to have a full hearing of the protection application in the circumstances of urgency that prevailed.[18] That is not this case. The hearing was not an interim hearing. Circumstances of urgency are not to be confused with resource management issues. There were no circumstances of urgency on this application and none are identified by the magistrate when determining to proceed by a submissions hearing. Relevantly, the concern influencing the decision of the magistrate was one of scheduling and delay arising, perhaps, from available resources.
[17]Supreme Court of Victoria (Beach J) (2 August 1994), unreported BC 9400031.
[18]See also Hien Tu v Secretary, Department of Human Services [1999] VSC 42.
Secretary, Department of Human Services v Ross[19] also concerned an application for an interim accommodation order. In obiter remarks, Ashley J (as he then was) observed:
It could not be thought, in my opinion, that it was desirable for the learned magistrate to determine the application simply in reliance upon unrecorded submissions from the Bar table. That is so despite s 82(1) of the Act. Nonetheless, it must be recognised that in urgent circumstances a course may be followed which is far from ideal; though having said that, the problems when an appeal is brought from an order made in such circumstances become very considerable.
[19][2003] VSC 172.
Notwithstanding Ashley J’s comments, with which I agree, in Purcell v RM,[20] which was another interim accommodation order application, Gillard J made the following observations about ‘submissions hearings’:
The procedure that is adopted in the Children’s Court is for evidence to be adduced by assertions from counsel for the parties and the parties themselves, and the same procedure appears to be followed in this Court. That procedure has been followed for many years and although it is unusual it is no doubt a procedure adopted because of the urgency of an application and the interests of a child who may be subjected to some form of harmful conduct.[21]
There is no conflict between these observations and those of Ashley J, as Gillard J’s reference to the procedures of this court, the circumstances of urgency, and the prospect of harm to a child make plain. It has long been the case that this court entertains matters of genuine urgency, carrying risks of serious harm, on information provided to it by counsel from the Bar table. Inevitably such deliberations are interim, to be reconsidered inter partes and on sworn evidence once the risk of harm is controlled and the opportunity to reconsider the matter has arisen. In the context of the relief granted, there is no want of procedural fairness in such circumstances, but again, that is not this case.
[20][2004] VSC 14.
[21]Ibid [33].
More recently, in Sanding[22] Bell J considered the adoption of a ‘submissions contest’ hearing on an occasion that did not involve making an interim order on an urgent occasion. The proceeding before the court was an appeal under s 329(1) of the Act brought on a question of law from a final order of the Children’s Court. The court had revoked a Custody to Secretary order returning four aboriginal children to the care of their maternal grandmother. Bell J reviewed the earlier authorities to which I have referred concerning ‘submissions hearings’. His Honour considered that in the context of a tribunal or court entitled to inform itself on any matter as it thinks fit, an important constraint in the exercise of such powers is that the information on which the court or tribunal may act, however obtained, must form a proper basis for the decision. That requires information that is logically probative, reliable and relevant and on which the parties have been given adequate opportunity to comment.[23] Bell J concluded:[24]
The material which may properly support a decision of a court or tribunal can legitimately come from a variety of sources, might occupy different points along a spectrum of probative force and reliability and, depending on the issues and circumstances, might require different treatment. Hearsay evidence is admissible if it is fairly reliable, although the weight to be given to it will need to be considered. Evidence which is not the best evidence may be admitted, but if it is challenged and the issue is important it is the best evidence which may be required. The court or tribunal may act on written submissions containing assertions of fact, and statements made from the bar table by the parties or their legal representatives, but if the asserted facts are in serious dispute and concern important issues, it may be necessary to insist on much more. [Citations omitted]
[22][2011] VSC 42.
[23]Ibid 39 [132] citing R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456, 476; Wajnberg v Rayner and Melbourne Metropolitan Board of Works [1971] VR 665, 678-679; TA Miller Ltd v Ministry of Housing and Local Government [1968] 1 WLR 992, 995; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482, 493.
[24]Ibid [133].
The conclusion that was open to the magistrate in Sanding, that the information before the court provided a proper basis for the court to act, was not in my view open to the magistrate on this application. That is so because of the matters identified in the best interests principles that the court was bound to consider. The decision of the magistrate, that she might inform herself about how to resolve the access application by rejecting the contentions of counsel for the Secretary, forcefully put, that the Secretary had proper grounds to challenge the evidence being given from the Bar table by unrepresented parties and by calling evidence on the relevant issues, denied procedural fairness to the Secretary. Further, in my view, it cannot be said that in consequence, the decision below was reached by the magistrate with proper regard to s 10 of the Act.
Refusing a party the opportunity to call relevant witnesses may constitute a breach of procedural fairness[25] as may depriving a party the opportunity to cross-examine another party’s witnesses. In an affidavit read to me, a senior protective worker assigned since October 2011 to the child, gave examples of several matters of factual inconsistency about the degree of access to the child that the cousin was presently enjoying and concerning the degree of co-operation between the grandmother and the Department prior to the application for access being made. Further, a contest by evidence would have enabled the Secretary to call expert evidence, particularly from counsellors who had been managing the child’s behavioural difficulties both at school, and in coming to terms with his circumstances more generally. Further investigations about the cousin’s circumstances could have placed a proper assessment of those circumstances before the court in place of the impressionistic conclusions upon which the magistrate relied. There was clearly a significant risk for the child’s welfare through destabilisation of his placement with a long term carer through extended access to different family members other than in accordance with a properly considered approach.
[25]See, eg, CGU Insurance Ltd v CW Fallaw & Associates Pty Ltd [2008] VSC 197, [25]-[26].
In my view, it is not possible to say that the opportunity of which the Secretary was deprived could not have made a difference in the proper disposition of the application in accordance with the statutory scheme.[26] Proceeding by evidence rather than upon a submissions hearing in circumstances that were not considered urgent would not have frustrated the purposes or objects of the Act. To the contrary, it is likely that the magistrate would have had a proper basis to consider and determine the application in accordance with the statutory scheme.
[26]Stead v State Government Insurance Commission (1986) 161 CLR 141; Ucar v Nylex Industrial Products [2007] 17 VR 492.
In contending that the qualification of procedural fairness that the magistrate imposed in the present circumstances did not interfere with the purpose or objects of the Act in the resolution of the access application, the first and fourth defendants placed emphasis upon both s 215 of the Act and the nature of the Children’s Court as a specialist tribunal.[27]
[27]Referring to M v M [1993] 1 VR 391, 395.
In Kirk v Industrial Court of New South Wales,[28] the High Court considered the nature of this court’s jurisdiction to supervise inferior courts and tribunals. It held that: ‘A defining characteristic of State Supreme Courts is the power to confine inferior courts and tribunals within the limits of their authority to decide by granting relief in the nature of prohibition and mandamus, and … certiorari, directed to inferior courts and tribunals on grounds of jurisdictional error’.[29] Relevantly to the application before me, the court observed:
… it is important to recognise the use to which the principles expressed in terms of "jurisdictional error" and its related concept of "jurisdictional fact" are put. The principles are used in connection with the control of tribunals of limited jurisdiction on the basis that a "tribunal of limited jurisdiction should not be the final judge of its exercise of power; it should be subject to the control of the courts of more general jurisdiction". Jaffe expressed the danger, against which the principles guarded, as being that "a tribunal preoccupied with special problems or staffed by individuals of lesser ability is likely to develop distorted positions. In its concern for its administrative task it may strain just those limits with which the legislature was most concerned". It is not useful to examine whether Jaffe's explanation of why distorted positions may develop is right. What is important is that the development of distorted positions is to be avoided. …[30] [Citations omitted]
[28](2010) 239 CLR 531; [2010] HCA 1.
[29]Ibid 566 [55].
[30]Ibid [64], see also [69]-[70].
An inferior court or tribunal has little or no claim to specialist expertise as to what procedural fairness requires. Without the consent of all parties to dealing with the access application on a submissions hearing, the magistrate was obliged to consider whether she could properly determine the application, as required by the Act and principles of natural justice, and whether the particular circumstances of the application warranted a departure from the procedures that are ordinarily employed to ensure that the court is properly appraised of all relevant matters affecting its determination. That did not occur.
For these reasons, I will order that the variation to the Custody to Secretary protection order made by the Children’s Court of Victoria in proceeding no 4073/2010 on 29 August 2012 is quashed. It follows that the Custody to Secretary order made by the Children’s Court of Victoria on 14 January 2011 in respect of the child continues in force until further order. I will hear from the parties on the question of costs.
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