Secretary, Department of Human Services v Sanding

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST

No. S CI 2009 10408

SECRETARY, DEPARTMENT OF HUMAN SERVICES	Appellant
v
CATHERINE SANDING	Respondent

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2010, 22 November 2010, 1, 8 & 17 December 2010
DATE OF JUDGMENT:	22 February 2011 (revised 20 June 2011)
CASE MAY BE CITED AS:	Secretary, Department of Human Services v Sanding
MEDIUM NEUTRAL CITATION:	[2011] VSC 42	1^st Revision: 20 June 2011

APPEAL – Children’s Court of Victoria – custody to secretary orders – four Aboriginal children – placed separately in non-Aboriginal out of home care – mother applied for revocation of orders – whether error of law in revoking orders on first mention day – submissions contest hearing – court acted on information in disposition reports and bar table submissions – whether within court’s procedural discretion – whether contrary to natural justice – facts not in serious dispute new and dispositive information - whether formal evidence required – specialist courts and tribunals – cautious approach adopted on appeal – Children, Youth and Families Act 2005, ss 215(1) and 308.

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HUMAN RIGHTS – Childrens Court of Victoria – custody to secretary orders – application for revocation - whether court had specified human rights functions – right to a fair hearing – whether applied to revocation application – ‘party to a civil proceeding’ – Charter of Human Rights and Responsibilities Act 2006, ss 6(2)(b), 17(1) and (2), s 24(1).

APPEARANCES:	Counsel	Solicitors
For the appellant	Mr R Gipp of counsel ( 15 July 2010), Ms D Preston, Solicitor (22 November 2010) and Ms J Davidson of counsel (1, 8 & 17 December 2010)	Legal Services Branch, Department of Human Services
For the respondent	Mr D Cain of counsel (15 July 2010), Mr D McKenzie of counsel (22 November) and Mr M Regan of counsel(1, 8 & 17 December 2010)	Victoria Legal Aid, Goulburn Office

TABLE OF CONTENTS

INTRODUCTION.............................................................................................................................. 1

GROUNDS OF APPEAL.............................................................................................................. 2
MAKING AND REVOKING CUSTODY TO SECRETARY ORDERS.................................. 3
(1)Best interests of child............................................................................................................... 3
(2)Children’s Court of Victoria................................................................................................... 7
(3)Secretary of Department of Human Services..................................................................... 10
(4)Making custody to secretary orders.................................................................................... 11
(5)Revoking custody to secretary orders................................................................................. 13

WHY CUSTODY TO SECRETARY ORDERS WERE MADE................................................. 14

WHY CUSTODY TO SECRETARY ORDERS WERE RECOKED......................................... 24

PROCEDURAL POWERS OF CHILDREN’S COURT........................................................... 32
(1)Section 215(1) of Children, Youth & Families Act................................................................. 32
(2)Impact of best interests of child on court’s procedural discretion.................................. 41
CHARTER OF HUMAN RIGHTS AND RESPONDIBILITIES ACT 2006............................ 47
(1)Relevance of human rights engaged................................................................................... 47
(2)Application of Charter to Children’s Court....................................................................... 49
(3)Scope of human right to fair hearing................................................................................... 51
(4)Are protection proceedings covered by human right to fair hearing?........................... 53
EXERCISE OF PROCEDURAL DISCRETION TO CONDUCT SUBMISSIONS CONTEST 66
(1)Appeals from decision of specialist courts and tribunals................................................ 66
(2)Interests which had to be taken into account..................................................................... 71
(3)Critical facts not in serious dispute...................................................................................... 75
(4)Mother leaving grandmother’s home was new and dispositive consideration............ 76
(5)Revoking custody to secretary orders without disposition report................................. 79

HIS HONOUR:

INTRODUCTION

Under the Children, Youth & Families Act 2005, the best interests of the child must always be paramount. Applying that principle, the Children’s Court of Victoria made orders returning four Aboriginal children to the care of their maternal grandmother. In doing so, the court conducted a ‘submissions contest’ hearing in which formal evidence was not given. By that procedure, the court can act on information provided by the legal representatives of the parties at a hearing and (for example) the contents of any protection reports about the children. Hitherto the procedure had been applied in making interim orders in urgent cases. On this occasion, it was applied in making orders of a different kind.

For many years, the children had been living with their mother (‘Catherine Sanding’) in the home of their maternal grandparents. The grandmother was the real carer of the children. The mother was drug addicted and not taking proper care of them. Her behaviour was disturbing the household and impacting negatively on the welfare, development and education of the children, who were aged nine (a boy), seven (a boy), five (a girl) and two (a girl).

Due to those and other protective concerns, the Department of Human Services was constantly engaged with the family. Things came to a head when the Secretary obtained custody to secretary orders from the court. After initially leaving the children where they were, her protective concerns rose to the point that she placed them in out of home care. They could not go to relatives, there were no Aboriginal families available and they had to be separated.

The mother applied to have the orders revoked. On the first mention day, she told the court she would leave the grandmother’s home and requested orders for the immediate return of the children. After hearing from the parties, the magistrate replaced the custody to secretary orders with interim accommodation orders permitting the children to return to the grandmother’s care, on conditions. That, submits the secretary in this appeal, was an error of law.

GROUNDS OF APPEAL

The appeal is brought under s 329(1) of the Children, Youth & Families Act. By that provision, a party to a proceeding in the Family Division of the court may appeal ‘on a question of law’ from a final order of the court.

The parties to the appeal are the secretary, the mother and the four children. Notice of appeal was also served, and appropriately so, on the registrar of the Children’s Court, the maternal grandparents and the father of the three eldest children.

As specified in the secretary’s amended notice of appeal, the questions of law are:

1.Having regard to s 215 of the Children, Youth and Families Act, was it a condition or limitation of the Magistrate’s power under s 308(b) of that Act to revoke a custody to Secretary order that the Magistrate have some evidentiary basis, in addition to submissions, for a determination about the ‘best interests of the child’?
2.Was the appellant denied procedural fairness in the Magistrates’ determination under s 308(b) to revoke the custody to Secretary orders by not adopting the usual practice (as contended by the appellant) of allowing the appellant to prepare and present the Court written and unwritten evidence (including a disposition report under s 557 and expert evidence) to justify a preservation of the custody to Secretary orders?

Reflecting those questions of law, these are the specified grounds of appeal:

1.The learned Magistrate erred at law in revoking the custody to Secretary orders without hearing written and unwritten evidence (including a disposition report under s 557, and expert evidence) to justify a preservation of the custody to Secretary orders.
2.The learned Magistrate erred at law in revoking the custody to Secretary orders by reference to submissions only from the parties’ legal representatives, which was not sufficient material for determination of such applications.

On those grounds, the secretary seeks orders setting aside the revocation orders and interim accommodation orders made and remitting the revocation applications back to the court to be determined according to law.

The critical consideration is whether the orders were made by the court by procedurally legitimate means.

MAKING AND REVOKING CUSTODY TO SECRETARY ORDERS
(1) Best interests of child

Children are ends in themselves and not the means of others. They form part of the family, the fundamental group unit of society. Children bear rights personally, and are entitled to respect of their individual human dignity. The views of children should be given proper consideration in relation to matters affecting them. Children are especially entitled to protection from harm, and to human development. Those values are inherent in the best interests of the child which is the foundational principle of the Children, Youth & Families Act. That principle is the cardinal consideration in protection proceedings in the court, including the making and revoking of custody to secretary orders. The legislation contains a detailed scheme for identifying and protecting the child’s best interests which it is the responsibility of the secretary to administer and the jurisdiction of the court to enforce.

The best interests of the child is a long-standing principle of the parens patriae jurisdiction of the courts. The history of that jurisdiction was examined extensively by Lord Guest in J v C,[1] which concerned 1925 guardianship legislation. His Lordship said the ‘dominant consideration has always been the welfare of the child’[2] and cited[3] with approval this statement by Danckwerts LJ in the case of In re Adoption Application 41/16:[4] ‘there can only be only one “first and paramount consideration”, and other considerations must be subordinate.’
[1][1970] AC 668, 692-700.
[2]Ibid 697.
[3]Ibid 700.
[4][1963] Ch 315, 329.

The High Court of Australia has described the origin of the principle of the best interest of the child in the same way. For example, in ZP v PS[5] Mason CJ, Toohey and McHugh JJ said that, in the parens patriae jurisdiction, the ‘Court of Chancery has always been guided by the principle that the welfare of the minor is the first and paramount consideration’. In Northern Territory v GPAO,[6] Gleeson CJ and Gummow J said the best interests of the child was an ‘important and salutary principle of substantive law, adopted by courts exercising parens patriae jurisdiction for more than a century’.
[5](1994) 181 CLR 639, 647.
[6](1999) 196 CLR 553, 584.

The paramountcy principle is now specified as a human right in s 17(2) of the Charter of Human Rights and Responsibilities Act 2006, which provides that every child has the right ‘to such protection as is in his or her best interests and is needed by him or her by reason of being a child’. In s 17(2), the Charter also specifies the human right to protection of the family.

Lastly, the paramountcy principle is expressed in international declarations and conventions to which Australia has subscribed, including the International Covenant on Civil and Political Rights[7] (see articles 23(3) and 24(1)) and the Convention on the Rights of the Child.[8] The convention specifies the basic human rights that children everywhere have without discrimination, including the right to survival, to development of their full human potential, to protection from harm, abuse and exploitation and to participate fully in family, cultural and social life. In reference to the best interests of the child, this is art 3:

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well‑being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

[7]International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[8]Convention on the Rights of the Child, opened for signature 20 November 1989 (entered into force 2 September 1990).

Part 1.2 of the Children, Youth & Families Act sets out certain considerations which must be taken into account in relation to matter affecting children. These are stipulated in Division 2 of that Part to be the ‘best interest principles’. Section 10(1) provides that for ‘the purposes of this Act the best interests of the child must always be paramount.’ By s 8(1) and (2), that is a principle to which the court and the Secretary ‘must have regard … in making any decision or taking any actions’ under the Act.[9]
[9]By s 9(2), the principles do not apply to the provisions of the Act dealing with children under criminal law (Chapter 5 and Chapter 7 in relation to matters dealt with in Chapter 5).

Section 10(2) stipulates how the principle of the best interests of the child is to be applied. When determining whether a decision or action is in the best interests of the child, there must always be consideration of ‘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)’.

Section 10(3)(a)-(r) stipulates a number of considerations which must be taken into account when identifying the best interests of the child. These include protecting the relationship between parents and children as the fundamental group unit of society, the need to strengthen and promote that relationship, respecting and maintaining the identity of Aboriginal children, taking the ascertainable views of children into account, removing children from their parents only if there is an unacceptable risk of harm to them and placing them with other family members if possible, reunifying children with their parents and ensuring there is access by the child to their family and the desirability of keeping siblings together when they are placed in out of home care.

One of the considerations is ‘the possible harmful effect of delay in making the decision or taking the action’ (s 10(3)(p)). In its application to the court, this should be read with the court’s power to adjourn a proceeding in s 530(1). Under s 530(10), the court must not adjourn 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’. In exercising the power of adjournment, the court is required by s 530(11) to take into account the need to ‘proceed with as much expedition as the requirements of this Act and a proper hearing of the proceeding permit’ (s 530(8)) and the need to avoid the granting of adjournments in Family Division proceedings ‘to the maximum extent possible’ (s 530(9)).

The mandatory relevant considerations stipulated in s 10(3) reflect a principle of limited interference in the relationship between children and parents. Thus, under s 10(3)(a), intervention must be ‘limited to that necessary to secure the safety and wellbeing of the child’ and, by s 10(3)(g), a child should only be only removed from the care of their parents ‘if there is an unacceptable risk of harm to the child’.

That principle of limited interference is also reflected in article 9 of the Convention on the Rights of the Child, which provides:

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

The children in the present case are Aboriginal. The general best interest principles place particular stress on protecting and promoting the ‘Aboriginal cultural and spiritual identity and development’ of Aboriginal children (s 10(3)(c)). Wherever possible, this must be done by ‘maintaining and building their connections to their Aboriginal family and community’. When removed from their parents’ care, Aboriginal children should be placed with other members of their family wherever possible (s 10(3)(h)). Where they are placed with a care‑giver from a different cultural community, the best interest principles recognise ‘the desirability of the child retaining a connection with their culture’ (s 10(3)(m)).

There are additional decision-making principles applying to Aboriginal children. Section 12(1) stipulates a principle of consultation with the Aboriginal community to which the child belongs and with an approved Aboriginal agency. Section 13(1) stipulates the Aboriginal child placement principle. Section 14 stipulates further principles to be applied when placing Aboriginal children in out of home care, including self-identification and the expressed wishes of the child (s 14(1)) and ensuring contact between an Aboriginal child and their Aboriginal family, community and culture (s 14(5)). All of these principles give recognition to the distinct and cultural attributes of Aboriginal people, to the principle of ‘Aboriginal self‑management and self‑determination’ (as it is put in s 12(1)) and to the importance of maintaining a child’s Aboriginal identity.

(2) Children’s Court of Victoria

The Children’s Court was established as a court in Victoria by the Children’s Court Act 1906 and it has continuously functioned as such under the legislation which has been enacted since. The current legislation is the Children, Youth & Families Act by which, in s 504(1), there ‘continues to be a court called “The Children’s Court of Victoria”’.

Under s 504(2), the court consists of a president (who must be a judge of the County Court),[10] the magistrates and the registrars. The court has four divisions – the Family Division, the Criminal Division, the Koori Court (Criminal Division) and the Neighbourhood Justice Division – in which every proceeding of the court must be commenced, heard and determined (ss 504(3)-(4)). The court is usually constituted by the president or a magistrate (s 504(7)).
[10]Section 508(2).

The legislation makes the president responsible for ensuring the court is constituted by magistrates with relevant expertise. Thus s 507(1) allows magistrates to be assigned to the court by the president in consultation with the Chief Magistrate. In making such an assignment, the president must have regard to the experience of the magistrate ‘in matters relating to child welfare’ (s 507(2)). The president may assign duties to magistrates so assigned (s 510(1)), who must carry out these duties (s 510(3)). The president may revoke an assignment at any time in consultation with the Chief Magistrate (s 507(3)).

As will be seen, the Children, Youth & Families Act confers certain responsibilities on the secretary which are carried out by officers of her department. I mention them here because of their direct relevance to the court. Among other things, the secretary must provide assistance and reports to the court when determining what orders to make in the best interests of children. The secretary also has responsibility under the Act for maintaining the Children’s Court Clinic, which makes clinical assessments of children, submits reports to courts and other bodies and provides clinical services to children and their families.[11] Through the performance of the secretary’s functions, the court has access to sources of expert advice in the exercise of its specialist jurisdiction with respect to matters concerning the protection and welfare of the child
[11]Section 546(1) and (2).

This court recognises the specialist nature of the jurisdiction of the Children’s Court and the expertise which it has developed in the exercise of that jurisdiction. For example, this is Beach J in Hien Tu v Secretary of the Department of Human Services:[12]

The Children’s Court is a specialist court presided over by Magistrates experienced in matters affecting young children, with ready access to experts in the field of child care. It is beyond doubt that Magistrates at the Court become very skilled in dealing with children …

That statement was cited with approval by Gillard J in Purcell v RM[13] and Habersberger J in CJ v Department of Human Services,[14] and I would endorse it here. This will be an important consideration in the present case, for the court will be cautious before interfering with decisions made by the Children’s Court concerning the procedures to be followed in the exercise of its specialist jurisdiction.

[12]Unreported, Beach J, Supreme Court of Victoria, 23 February 1999, [21].

[13][2004] VSC 14, [27].

[14][2004] VSC 317, [21].

Ensuring that the voice of the child is heard is an important value. It is a best interest principle under the Children, Youth & Families Act that the child’s views and wishes, if they can be ascertained, should be given appropriate weight (s 10(3)(d)). The court[15] and the secretary[16] must have regard to that principle in making decisions and taking actions under the Act.
[15]Section 8(1).
[16]Section 8(2).

This is consistent with art 12 of the Convention on the Rights of the Child, which provides:

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

To ensure that the voice of the child is heard, the legislation facilitates the participation by children in proceedings. Section 522(1) stipulates procedural guidelines which must be followed by the court. These include ensuring that proceedings are comprehensible to the child, their parents and other parties (paragraph (a)), being satisfied that the child understands the nature and implications of the proceeding and any order (paragraph (b)), allowing the child, their parents and other parties to participate fully in the proceeding (paragraph (c)), considering the express wishes of the child (paragraph (d)), respecting the cultural identity and needs of the child, their parents and other family members (paragraph (e)) and minimising the stigma to the child and their family (paragraph f)). Section 527(1) requires the court, when it makes an order, to explain its meaning and effect as plainly and simply as possible to the child, their parents and other parties.

There are also provisions which facilitate that participation by enabling the child to obtain legal representation. Section 524(1) allows the court to adjourn proceedings in the Family Division for that purpose if the child is not separately legally represented. Under s 524(2), that power of adjournment must be exercised in certain proceedings where the child is mature enough to give instructions. According to the guidelines of the court which have been developed with expert assistance, a child aged seven years or over is generally regarded as having that level of maturity. The proceedings which must be so adjourned include applications for the variation or revocation of a custody to secretary order (s 524(1)(d)). In such a case, ‘the Court must adjourn the hearing of the proceeding to enable the child to obtain legal representation and, subject to sub-section (3), must not resume the hearing unless the child is legally represented.’ Sub‑section (3) allows the court to resume a hearing without the child being legally represented if they have had a reasonable opportunity to obtain legal representation and have failed to do so.

In the present case, the children were not represented in the hearing before the magistrate at which the custody to secretary orders were revoked. Even though the two older children were aged nine and seven years and had previously been represented in proceedings in the court, the magistrate did not consider whether the children were mature enough to give instructions or whether the application should be adjourned to enable them to obtain legal representation. In this appeal, the secretary relies on this consideration

(3) Secretary of Department of Human Services

This court must also acknowledge the significance of the functions which the legislation confers on the secretary. She has brought the present appeal in the exercise of those functions in the best interests of the children concerned and because the case raises important issues about the procedures followed by the Children’s Court in protection proceedings.

Achieving the purposes of the Children, Youth & Families Act with respect to the protection of children depends on the effective exercise by the secretary of her statutory functions. It would not be consistent with the object and purpose of the Act for its provisions, including those relating to the procedural powers of the Children’s Court, to be interpreted in a way which inhibited the secretary in exercising of those functions.

Among the secretary’s specific functions is being a protective intervener under s 181. In that capacity, she can take various actions for the protection of children, including making applications for protection orders, such as custody to secretary orders. The secretary also has a number of general responsibilities under s 16(1), including promoting the prevention of child abuse and neglect (paragraph (a)). Her functions included being a party to the mother’s revocation application.

(4) Making custody to secretary orders

Under s 287(1), a custody to secretary order grants sole custody of the child to the secretary (paragraph (a)), remains in force for a specified period not exceeding 12 months (paragraph (c)) and may include conditions in the best interests of the child, such as conditions concerning access by a parent or other persons and incorporating cultural plans in respect of Aboriginal children (paragraph (d)).

A custody to secretary order is a ‘protection order’ under s 275, as is an interim protection order and certain other orders. Section 274 allows the court to make a protection order if it finds the child to be in need of protection (paragraph (a)) or there is such a substantial and irreconcilable difference between a child and their custodian that the care and control of the child is likely to be seriously disrupted (paragraph (b)). The court cannot make an order removing the child from the custody of a parent, such as a custody to secretary order, unless (among other things) this is in the best interests of the child (s 276(2)(c)). As will be seen, the same principle applies when revoking such an order.

The provisions of s 162(1) specify when, for the purposes of the Children, Youth & Families Act, a child is in need of protection. According to those provisions, a child is in need of protection if they have been abandoned by their parents (paragraph (a)), the parents are dead and there is nobody willing to care for the child (paragraph (b)), the child is suffering or is likely to suffer significant physical harm or sexual abuse from which they are not likely to be protected by their parents (paragraphs (c) and (d)), the child is suffering or is likely to suffer emotional or psychological harm damaging to their development from which they are not or are not likely to be protected (paragraph (e)) or the child’s physical development or health has been or is likely to be significantly harmed and the child’s parents have not ensured the provision of basic care and effective medical, surgical and other remedial care to the child (paragraph (f)).

Before making a protection order, the court must, under s 276(1)(a), receive and consider a disposition report in relation to the child which the secretary has prepared under s 557. By s 558, a disposition report must include a draft case plan[17] (if any) and the secretary’s recommendations as to the orders which the court should make and the services which should be given to the child and their family. As will be seen, this requirement does not expressly apply when the court revokes a custody to secretary order.
[17]Under s 166, a case plan is a plan prepared by the secretary containing significant decisions made by her in relation to the child and their care and wellbeing, including the placement of, and access to, the child. Section 167 requires the plan to be prepared within six weeks of the court making a custody to secretary order.

If the protection order would remove the child from the custody of their parents, the Court must consider and reject, as contrary to the child’s best interests, an order allowing the child to remain in that custody (s 276(2)(a)). The court must also be satisfied by the disposition report that all reasonable steps have been taken by the secretary to provide the services necessary to enable the child to remain in the parents’ custody (s 276(2)(b)).

I will deal later with the procedures by which applications for protection orders are made and determined by the court. I will also say more about the principle of the best interest of the child as it impacts on those procedures.

When a custody to secretary order is made, s 173(2) allows the secretary to place the child in out of home care (paragraph (a)), in a secure welfare service for up to 21 days, if the secretary is satisfied there is a substantial and immediate risk of harm to the child (paragraph (b)) and in such other suitable situation as the circumstances require (paragraph (d)). In so placing the child, s 174(1)(a) requires the secretary to have regard to ‘the best interests of the child as the first and paramount consideration’.

It was in the exercise of those powers that the secretary removed the children from the care of the grandmother and placed them in separate, non-Aboriginal out of home care. It was that placement which led the mother to make the application for the revocation of the custody to secretary orders. It is to the provisions governing the determination of such applications that I now turn.

(5) Revoking custody to secretary orders

Under s 304(1), an application to revoke a custody to secretary order may be made by the child, their parent or the secretary. Here is s 308, which governs how the court must determine such applications:

On an application under section 304 in respect of a custody to Secretary order … , the Court—
(a) must revoke the order if it is satisfied that—
(i) the Secretary, the child and the child's parent have agreed to the revocation; and
(ii) the revocation of the order is in the best interests of the child; and

(b) in any other case, may revoke the order if it is satisfied that it is in the best interests of the child to do so.

Revocation is thus mandatory if it is by agreement and in the best interests of the child (s 308(a)). Revocation is otherwise discretionary if it is in the best interests of the child (s 308(b)).

When a person applies for a revocation of a custody to secretary order, as occurred in the present case, s 557(1) provides that the secretary ‘must prepare and submit to the Family Division a disposition report’. Under s 558, the report must contain a draft case plan (if any) and recommendations for the order which the court should make. Section 559(1) requires access to the report to be given (among others) to the child, their parents and other parties. Section 560 makes provision for the preparation of additional reports, to which access must likewise be given under s 561(1).

Such a disposition report is an important vehicle for the performance of the secretary’s function of taking protective action in the best interests of the child and assisting the court with respect to the exercise of its jurisdiction to revoke the custody to secretary order. In the present case, the magistrate revoked the order without the secretary having prepared the disposition report. In this appeal, the secretary also relies on that consideration.

If the court revokes a custody to secretary order under s 308, and it is still satisfied (for example) that the child is in need of protection as specified in s 274, it can order a person to give an undertaking[18] or make a supervision order or a guardianship order in respect of the child (s 310(3)). In the present case, the court took no such steps and placed the children on interim accommodation orders. Without submitting that the court had no power to do so, the secretary submits that was another irregular aspect of the procedure which was adopted.
[18]Undertakings are dealt with in Division 2 of Part 4.9.

The revocation orders were made under the provisions which I have now described and in the circumstances which follow.

WHY CUSTODY TO SECRETARY ORDERS WERE MADE

The protection reports and other material which is before this court shows the department had a history of involvement with the family going back to 2002. It is not clear whether all of this material was before the magistrate. It appears that it was, because it was all filed with the court and the later material, which definitely was before the magistrate, refers to the earlier material. I have proceeded on this basis. Even if the magistrate had only the later material, the result would be the same.

The material shows that, after protection orders were made in 2002 and 2008, the department provided an application and disposition report dated 26 June 2008 to the court (exhibit CFM 1). That report was to assist the court to determine whether or not to grant a protection application of the secretary.

The report described the history of the department’s involvement with the family in 2008 and its protective concerns. It went into the mother’s drug-taking, its effect on the children and the disharmony in the household which it was causing, and also expressed some concerns about the physical condition of the house. It described an incident where the second-youngest child was pricked with a syringe and expressed concerns about the frequent non-attendance of the older children at school.

Referring to s 162(1)(c) of the Act, the report said the children were at risk of suffering physical harm, due mainly to the behaviour of the mother:

The children are deemed to be at risk of physical harm due to them being exposed to their mothers intravenous drug use and this affecting her ability to protect them from abandoned syringes and other dangers stemming from this activity. The children are also deemed at risk of this nature due to being exposed to domestic violence between their mother and maternal grandmother.

Referring to s 162(1)(e), the report said the children were at risk of suffering emotional or psychological harm ‘due to them being exposed to high levels of domestic violence between their mother and maternal grandmother.’

Referring to s 162(1)(f), it said the children’s basic needs were not being met: ‘The children’s health and wellbeing is deemed to be impacted upon due to the state of the home environment. The home environment has been observed to be at a state that is unhygienic and very untidy.’

The report gave this summary of the department’s concerns, which focused on the negative influence of the mother:

9.1 Summary of concerns for the children
The main concerns about the children’s best interests, that are not being met, are:
·[The children’s] environment exposes them to conflict between their mother and maternal grandmother impacting on their sense of safety and stability.
·[The children’s] basic developmental needs are not being met by [the mother] due to her inability to follow up appointments, engage in services, and address her own issues of drug misuse and anger management.
·[The mother’s] lack of insight into the impact these issues have on her children increases the likelihood of continued and escalated development deprivation.

Following this report, an interim protection order was issued by the court. That occurred on 11 August 2008. It placed the children in the care of the grandmother. In preparation for the court’s further consideration of the secretary’s protection application, the department prepared an addendum report dated 10 November 2008 (exhibit CFM 10).

That report provided an update on the family and the department’s protective concerns. Its focus was on the failure of the mother to care properly for the children due to her drug addiction. The poor school-attendance record of the two elder children was documented. The report recommended that the children be placed on an interim accommodation order in the care of the grandmother to allow a fresh assessment to be made.

Another addendum report was prepared dated 27 November 2008 (exhibit CFM 3). This report described various unsuccessful attempts by the department to engage with the mother and her poor physical condition. It reported that the principal of the school of the two elder children thought the grandmother had done a good job in ensuring their attendance. The report recommended that the children be placed on a custody to secretary order for 12 months.

There was another addendum report dated 27 November 2008 (exhibit CMF 4). It reported at greater length on the department’s attempts to engage with the mother and the home visits made by departmental protection workers. The home was described as being overcrowded and untidy, with unsatisfactory sleeping arrangements for the children, although the bedrooms were found to be clean and the beds to be made. No food was found in the house. The report was critical of the mother’s disruptive behaviour, but not of the grandmother. It recommended a custody to secretary order for 12 months.

At a hearing on 28 November 2008, the protection application of the secretary was adjourned. The interim accommodation orders were extended. There was another adjournment and extension on 18 December 2008 and a pre-hearing conference on 8 January 2009. Then there were directions hearings on 30 January, 13 February, 27 February, 2 April and 20 April of that year. During this period, the children were living with their mother and grandmother (and grandfather) at the grandmother’s house.

The department provided another addendum report to the court dated 1 May 2009 (exhibit CFM 5). It said the mother was not taking drug screens, which was contrary to the conditions of the interim accommodation orders, and the grandmother would only seek support in times of crisis and not to address current issues. It recommended a custody to secretary order, but not removal of the children from the grandmother’s home.

The department initiated breach proceedings in respect of the conditions of the interim protection orders. The breaches were not proven and the proceedings were adjourned on 25 May 2009 and 15 June 2009. The return of the interim protection orders was also adjourned on these days.

In preparation for the consideration of the secretary’s protection application, an application and disposition report dated 18 May 2009 was prepared for the court (exhibit CFM 6). It relied again on s 162(1)(c), (e) and (f) of the Children, Youth & Families Act, and repeated the same particulars. It said the mother was not protecting the children, had breached the conditions of previous interim accommodation orders and was not making required changes to her lifestyle or addressing the department’s protective concerns.

The report recommended in favour of a custody to secretary order, not a custody to the grandmother order. This was because the grandmother had, in the department’s view, not complied with the conditions of the interim accommodation orders and needed to demonstrate her capacity for consistent sound decision-making to ensure the ongoing safety of the children. The report said the custody to secretary orders being sought would allow the children to live with the grandmother, and also to be taken out of her care if necessary. A number of conditions were proposed.

The report addressed the actions required to promote the children’s best interests. As can be seen from the following passage, the main objective of the order sought was to have the children cared for by the grandmother in her home with the mother moving out in the meantime:

8ACTIONS REQUIRED TO PROMOTE THE CHILDREN’S
BEST INTERESTS

To enable the promotion of the children’s best interest, the children need to remain out of the care of their mother until such time that [the mother] is able to demonstrate a commitment to addressing the protective concerns. [The mother] is required to actively engage with support services as directed and demonstrate an understanding of the impact her behaviours and drug and alcohol use have on their safety, wellbeing, stability and development.
The placement of the children in their grandmother’s care offers them stability of care and continued connection with their family, mother and culture. The children need [the grandmother] to provide them with firm boundaries, positive and regular school attendance, ensure they are not exposed to violence and drug and alcohol use. [The grandmother] is required to ensure the children attend medical appointments as directed and [the two younger children] attend the Maternal and Child Health Nurse as recommended to provide ongoing developmental and health assessments. The children also need for [the mother] to ensure they reside in a safe and nurturing environment and ensure their contact with their mother is a positive experience and for this contact to not occur if [the mother] is affected by drugs or alcohol nor displaying aggressive or violent behaviour.
It is assessed that the children would be at less risk of harm in the care of their grandmother if [the mother] was not residing in the home. [The mother] has a long history of substance use and aggressive and violent behaviour. [The mother] has not engaged with services nor demonstrated that she has addressed the protective concerns, therefore it is assessed that there is a high likelihood of the children continuing to be at risk of significant harm if [the mother] continues to reside in the home.

The report said the order sought would comply with the Aboriginal child placement principles as required by ss 10(3)(c) and 13-14 of the Children, Youth & Families Act:

[The children] all reside with maternal grandmother who is able to offer them with ongoing access to cultural heritage, links and activities. [The children] along with their mother and grandmother acknowledge their Aboriginal heritage and actively engage with the local Aboriginal community. Consultation with VACCA Lakidjeka has occurred throughout current involvement.’

In summarising the department’s concerns for the children, the report repeated the earlier concerns (see exhibit CFM 6), adding that the mother’s ‘continued residence in the home impacts on the children’s safety and wellbeing and development’. It described the assistance which the grandmother would receive if the orders were to be made.

An addendum to this report was produced for the court on 21 July 2009 (exhibit CFM 8). It expressed deep concern about the failure of the two elder children to attend school and the department’s failed attempts to get the grandmother to send them to school. The report said this ‘is very concerning and having immense impact on their cognitive, social, behavioural and emotional development. The children are dependent upon their caregiver to promote their development through ensuring they maintain good school attendance’. It was also reported that the grandmother had allowed the children to be in the mother’s care on occasions without the grandmother’s supervision. It was again recommended that the court make a custody to secretary order on the basis that the children would live with the grandmother, and the mother’s access to them would be supervised by her.

The secretary’s application for a custody to secretary orders came on for hearing by the court on 27 July 2009. The parties consented to the making of orders with respect to all of the four children. The orders were made under s 287(1) of the Children, Youth & Families Act and granted sole custody of the children to the secretary from 27 July 2009 until 26 April 2010. Each of the orders was the subject of the same conditions, which were:

1.Maternal Grandmother must accept visits from and cooperate with DoHS.
2.Mother must accept visits from and cooperate with DoHS.
3.Maternal Grandmother must accept support services as directed by DoHS.
4.Mother must accept support services as directed by DoHS.
5.Mother must allow the child to be taken to a paediatrician for assessment, must allow any recommended treatment to be carried out and must allow reports to be given to DoHS.
6.Mother must submit to random supervised alcohol and drug testing as directed by DoHS and must allow the results to be given to DoHS.
7.Mother must participate in assessment and/or treatment for alcohol and drug dependence as required by DoHS and must allow the results to be given to DoHS.
8.Mother must not expose the child to the use of illegal drugs.
9.Maternal Grandmother and Mother must not expose the child to physical or verbal violence.
10.Mother must not threaten or assault DoHS staff.
11.Maternal Grandmother or Mother must take the child to the Maternal & Child Health Nurse as often as the Nurse recommends.
12.Maternal Grandmother or Mother must take the child to the doctor for regular check-ups as required by DoHS.
13.Maternal Grandmother and Mother must send the child to school every school day unless the child is ill and a medical certificate is obtained.
14.Whilst the child resides in the home of the Maternal Grandmother:
(a)subject to paragraph 14(c) the mother may have unsupervised access with the children between 8am and 4:30pm for periods 2 hours and/or otherwise at times agreed between the parties. Such unsupervised access will be unlimited between 8am and 4:30pm if the mother provides 3 successive clean urine screens unless DoHS receives information that the mother is substance affected;
(b)the Maternal Grandmother must monitor the mother’s contact with the child on all occasions other than paragraph 14(a);
(c)the Maternal Grandmother must not allow the mother to have unsupervised access with the child if the mother appears substance affected.[19]

[19]The orders relating to the youngest child had an additional condition which stated ‘Maternal Grandmother or Mother must take [child] to Pathology for a follow up blood test within 5 days from the date of this order. If the Mother or Maternal grandmother fail to arrange for a bloodtest within this time, DoHS may take [child] to Pathology for such test. DoHS may have copies of any reports’.

It will be seen that the conditions were premised on the children residing with the grandmother and did not require the mother to leave the grandmother’s home.

The circumstances in which the family consented to the custody to secretary order were described in an affidavit of their legal aid lawyer which was filed in the appeal proceeding. The facts to which he deposed were not disputed by the secretary. In summary, the children had been living with the grandmother under interim accommodation orders which had been made by consent. At the hearing on 27 July 2009, the grandmother and the mother were aware of and concerned that a custody to secretary order, even if made by consent, would allow the secretary to remove the children from the grandmother’s care. Through their counsel, they informed the legal representative of the department that, if the children were to be removed from the care of the grandmother, an application to vary or revoke the orders would be made.

At this time, the two elder children were aged nine and seven years. These children were represented by counsel on the day that the custody to secretary orders were made and they consented to the making of the order. The two younger children , who were then aged four and almost two years, were not represented. The child protection files of the department show the two elder children had been legally represented in previous hearings in the court, and in a hearing subsequent to the one at which the custody to secretary order was revoked. That is of relevance because these children were not represented at the hearing at which the magistrate revoked the custody to secretary orders.

On 3 September 2009, the children were removed from the care of the grandmother. I will describe later where they were placed. As explained in an affidavit of the department’s solicitor in this proceeding, the children were removed because of

[t]he failure of the maternal grandmother to attend meetings for the Best Interest Plan, her failure to ensure the older children attended school, failing to comply with medical conditions of the Custody to Secretary Orders and general environmental concerns about the state of the home and in particular hygiene issues at …

These reasons were more fully explained in an affidavit in the proceeding of a child protection worker which was filed on behalf of the secretary. She said the grandmother had cancelled best interests planning meetings on three occasions. A meeting was held at the home of the grandmother on a fourth. The house was found to be ‘a complete mess. There was rubbish and piles of dirty clothes everywhere and it was difficult to move around. [The grandmother] reportedly denied that there were hygiene concerns.’

The affidavit went on to say that discussions then took place about the grandmother’s ‘consistent failure to follow up with medical appointments, her inability to send the children to school (absence rate of 67%), the state of the house and surrounds and the failure to provide appropriate supervision to the children.’ The affidavit said that, in response, the grandmother became aggressive and abusive towards the department’s protection workers.

Then the affidavit described the removal of the children from the care of the grandmother. It said the police entered the house on 3 September 2009 (a Thursday), which was open. The police told the department the house was in a state that was one of the worst they had seen. To avoid the need for further police involvement, the mother brought the children to the department’s offices at Shepparton. She said there were no extended family members who could take them.

The department tried to find culturally appropriate placements for these Aboriginal children. As none were available within the region, placement options in a neighbourhood region were investigated. None were available. Non-Aboriginal carers were available with a foster care agency, but not for all of the four children together. Two placements were arranged, each for two of the children, thus minimising their separation. The two elder children exhibited behavioural difficulties at their placement, including absconding. After one week, they were put into separate placements. The department felt obliged to accept the non-Aboriginal placements due to ‘the risks’ of the children remaining with the grandmother. The department continued to explore Aboriginal placement options and maintained contact with the local Aboriginal support organisation about the case.

After the removal of the children, the relationship between the family and the department deteriorated. There were confrontationist meetings between the mother and department, and the grandmother did not engage with the department. There was little access by the mother and the grandmother to the children between 3 September 2009 and 4 November 2009 when the custody to secretary orders were revoked.

But the family were concerned about the children and acted on those concerns through their solicitors. The family solicitor deposed to receiving a number of distressing telephone calls from the mother and grandmother about the removal, separation and non-Aboriginal placement of the children, as well as their lack of access to them. As foreshadowed when they consented to the making of the custody to secretary orders, the mother applied for revocation of the orders. Before doing so, the solicitor for the grandmother informed the department of a significant new development – the mother had left the grandmother’s home. On this basis, the grandmother sought the return of the children to her care. This is the solicitor’s request to that effect, which he made on the grandmother’s behalf on 13 October 2009:

My client has had the children removed from her care and is anxious for their return. Her daughter has left the family home and she sees no impediment to the return of the children to her. She has the full support of the mother and the maternal grandfather in wanting a review of the case.
What worries me greatly with your decision is that I am instructed by my client that she and the grandfather are not having any contact with the children, a situation that has been ongoing since the children were removed last month.
This is obviously not in the best interests of the children given that they had been in the care of their grandmother for the previous two years whilst their mother was not able to care for them.
I would ask that you give your urgent attention to this matter so that an application to revoke the current order will not become necessary.

There is no evidence that the department responded to this request or reconsidered its decision in the light of the mother’s withdrawal from the grandmother’s home.

Two days later, on 15 October 2009, and through her solicitors, the mother made application to revoke the custody to secretary orders which had been made in respect of the four children. In each case, the grounds of the application were specified to be: ‘New facts and circumstances have arisen since the order was made.’ Although no particulars were given, this was obviously a reference to the matters described in the solicitor’s letter, especially the withdrawal of the mother from the grandmother’s home. At no time did the secretary or the department seek particulars of the grounds of the application.

This brings me to the hearing before the magistrate on 2 November 2009.

WHY CUSTODY TO SECRETARY ORDERS WERE RECOKED

The revocation application was listed for a mention hearing before the magistrate on 2 November 2009. The secretary was represented by a solicitor with the department’s court advocacy unit. The mother was represented by a legal aid solicitor. The grandmother was represented by the solicitor who had written the letter dated 13 October 2009. None of the children were represented. As will be seen, the father of the three eldest children was joined as a party and spoke on his own behalf in support of the mother’s application.

Prior to the commencement of the hearing, the registrar tentatively scheduled the application for a dispute resolution conference on 8 December 2009. The solicitor for the secretary prepared minutes of orders which would have resulted in the revocation applications being adjourned to that conference. Before the hearing, she showed those consent orders to the solicitors for the other parties.

The solicitor for the secretary was very experienced in the way that revocation applications were dealt with by the Children’s Court. She expected the court to follow its usual procedures with respect to applications of that kind. I accept her evidence as to what those procedures were.

Usually, a first mention hearing is an occasion for the parties to discuss the application, to consider ways in which it may be resolved by agreement and to obtain procedural orders. It is highly unusual, perhaps unprecedented, for final orders to be made on the first mention day (except by consent) and pursuant to a submissions contest procedure.

In accordance with the usual procedures, the solicitor for the secretary expected that, if the mother’s application was not resolved by consent at the first mention hearing or at the dispute resolution conference, it would be listed for a fully contested hearing on a later date. Before that hearing, the department will have obtained the particulars of the grounds of the application, which would normally not be known until the first mention hearing at the earliest. Before the fully contested hearing, the department will also prepare and file a disposition report as required by s 557(1)(c) of the Act. That report would be informed by the grounds of the revocation application, contain a draft case plan (if relevant, as it was here) and make recommendations concerning the orders which should be made.

According to the solicitor’s evidence, a contested hearing is usually conducted by way of witnesses giving sworn oral evidence and being cross‑examined. The authors of reports are liable to cross‑examination and all of the parties, including the secretary, can present evidence in support of their case.

Because these were the usual procedures, the solicitor for the secretary expected to discuss the grounds of the mother’s application with the legal representatives for the mother and the grandmother. She thought the department would then be given time to investigate and report on the new facts and circumstances on which the family was relying. If the matter could not be resolved by the first mention hearing, it would be listed for a dispute resolution conference and perhaps a later contested hearing.

While I accept the solicitor’s description of the usual procedures and the department’s belief as to what would be likely to happen at the first mention hearing, I do not accept that the department was not informed about the particulars of the grounds relied on by the mother and the grandmother in the revocation application. The ground was the one specified in their solicitor’s letter dated 13 October 2009 – the mother had moved out of the grandmother’s home. By implication, that meant the family were contending that the grandmother and grandfather now had a clear opportunity to care properly for the children.

The transcript of the hearing before the magistrate was in evidence in the proceeding before me. It shows that, when the hearing began, the solicitor for the grandmother first raised concerns about her lack of access to the children. The magistrate stood the matter down so that this issue could be discussed.

Shortly afterwards, the hearing resumed. The solicitor for the mother told the magistrate that the father of the three eldest children wished to be joined as a party. There being no opposition, the magistrate so ordered. A little later, the father told the magistrate that he wanted the children to be back with the grandmother and said something about them being safe (the transcript is not clear at this point). The solicitor for the mother then informed the magistrate that the department wished to make an oral application to vary the conditions of the custody to secretary order to permit access to take place until the matter was determined on a more final basis. The solicitor then made quite clear that the mother and the grandmother sought to have the children come home with the grandmother and, failing that, wanted substantial time by way of access.

The solicitor for the department then defended the department’s position in relation to access. She pointed to various attempts which the department had made to facilitate it.

Perhaps at this point the solicitor for the department could be forgiven for overlooking that the primary position of the mother and grandmother was that the children should immediately be allowed to go home with the grandmother. But the magistrate did not overlook this issue. His Honour returned to it and informed the solicitor for the mother that the court would ‘have to have a fair degree of satisfaction in relation to the safety and welfare and development of the children before I would allow that to occur’. His Honour said he was ‘happy to hear submissions in relation to that’. He also made it clear that he needed ‘evidence’ and ‘something a bit stronger than words alone were necessary’ before he would allow the children to go home.

These comments made it clear to all of the parties, including the secretary, that the magistrate would, if persuaded to do so on that day, make orders allowing the children to go home, which necessarily included the possibility of determining the revocation application at the hearing before him.

In response to these comments by the magistrate, the solicitor for the department did not object or offer reasons why this course should not be followed, although later she referred to the need to conduct further investigations. There was no reference to this course being unusual, inconsistent with the proper procedures of the court, unfair or disadvantageous to the department or inappropriate in any way. In no way do I criticise the solicitor for the secretary for failing to raise objections of this kind. In the circumstances of the case before the magistrate, I think it would have been difficult to sustain such objections. The point is, however, that the department did not then object. Indeed, the solicitor for the secretary fully and very effectively participated in the hearing, at the end of which the magistrate made orders which returned the children to the care of the grandmother.

The solicitor for the grandmother referred briefly to the issue of access and then submitted that the grandmother wanted the children to be back with her. He conceded that the mother had her problems, but submitted the children should be living together at home with the grandmother.

The magistrate then asked the solicitor for the department what the department had to say about the children living with their grandmother. Her response was to oppose this course because of what was occurring in the home when the children were living there previously. She referred to the mother’s failure to comply with the drug‑screening conditions of the interim accommodation orders, which understandably induced the magistrate to ask how this reflected on the grandmother’s ability to care for the children.

The legal representatives for the parties then made a series of submissions about whether the children should be allowed to go home. The submissions reflected the position of the respective party. While the reports prepared by the department were not mentioned in terms, the issues raised were those discussed in the reports, including the truancy of the two elder children, the failure of the grandmother to attend meetings, the physical condition of the house, the youngest child being pricked with a needle, the failure of the grandmother to take the children to medical appointments and other matters.

The submissions made on behalf of the mother and grandmother did not seriously refute the factual basis of the submissions made on behalf of the department. Nor has that factual basis been seriously disputed in the proceeding before me. Rather, the family submitted that, despite all of the criticisms, the department had allowed the children to live with the grandmother for a long time and the real problem was the drug‑addicted behaviour of the mother.

In that regard, counsel for the mother submitted, on instructions, that his client had decided to move out of the home. The mother had clearly come to the view that this was necessary in the best interests of her children, as to which her solicitor said this:

And that’s a significant change in circumstances which I would submit that the court needs to take consideration of. She has moved out, she will agree that – not to attend the family home. She has failed and it’s conceded to comply with the request for drug screens, and until she does that she – until she can provide those screenings to the satisfaction of the department she agrees that she cannot – can no longer live in that home, and no longer have access as liberally as she once did. That’s – her position now is that the primary consideration for her is that those – this sibling group be reunited and placed back with the maternal grandmother, and she’s prepared to take a back seat until such – and address her issues, and then and only then make efforts to be reunited with her own children.

In her closing remarks, the solicitor for the department said the department opposed the revocation of the order and the making of any order placing the children in the care of the grandmother. That submission reflected the solicitor’s correct understanding of what the issue was before the magistrate and what the magistrate might do. She went on to make this submission.

Your Honour I just voice that the department at this point in time would object to any revocation with the current custody to secretary order, and would object to any order being made placing the children back with the maternal grandmother. Considering the reasons for the children’s removal I think further investigation does need to be done in relation to whether the children are to ever be placed back there, not saying that they never will, but further investigation needs to be done, and in relation to the mother’s drug screens I understand that there is also a condition of a CBO that she’s on, so it has been court ordered on a number of occasions. I understand she’s out of the home, but there is still situations where I believe she attends the home. It’s a concern, there’s been domestic violence instances between the mother and the maternal grandmother.

Just before the magistrate announced his decision, a representative of an Aboriginal welfare organisation sought to address the court. His Honour declined to hear from this representative because he did not think she had standing. His Honour described the hearing as a ‘submissions contest’, which the parties before me accept as a correct description.

His Honour then announced his decision against the department, for which he gave these oral reasons:

I’m against the department; I think the children should be returned to the care of the grandmother providing that the mother is out of that accommodation. I think that there has to be closer supervision of the grandmother, her care and control of the children and the environment, and I propose to make orders accordingly.
The mother of course if she is to have access with the children has to undergo the drug and alcohol screenings. I’m concerned about the absenteeism and the medical issues not being appropriately addressed by the grandmother. I think that they can been addressed though or she can be given the opportunity to address such things if and when they arise in the future. If I am making a mistake in relation to those two issues I will have ample opportunity to fix the mistake by reversing the order that I’m making, but at this stage I think it’s in the children’s best interests to be together as a family with somebody that they know and love looking after then rather than a stranger.
So I am strongly of the view at this stage that – and I’m not saying that there aren’t problems there, there are, they have to be addressed, there’s no doubt about that, but I think the best environment to address them in is with the children living with the mother (sic) at this stage until I’ve had the opportunity of hearing more evidence and can understand in more detail all the issues in relation to this case.
[Solicitor for the mother]: So will we draw up a IAO Your Honour with those conditions (indistinct)?
HH: I think so, thank you very much. I think that those issues that I’ve highlighted have to be addressed, there’s got to be appropriate attendance at medical care when required, there’s issues of school absenteeism have to be addressed, the environmental factors have to be addressed. There has to be quality assurance, the department has to be involved, and monitoring, and where necessary giving directions in relation to these issues. In relation to the mother having access, that must be subject to drug and alcohol (indistinct) testing, all right, anything further?

After standing the matters down while the orders were prepared, the magistrate made an interim accommodation orders which were each in these terms:

INTERIM ACCOMMODATION ORDER:
Order that the child be placed with suitable person(s) [the grandmother at her address] pending that hearing or the resumption on the entering by the suitable person(s) [whether orally or in writing] into an undertaking to produce the child before the court for the hearing, or resumption of the hearing, of the relevant proceeding and following a report [whether oral or written] from the Secretary on that person’s or those persons’ suitability.
1.[The grandmother] must accept visits from and cooperate with DoHS.
2.Mother must accept visits from the cooperate with DoHS.
3.[The grandmother] must accept support services as directed by DoHS.
4.Mother must accept support services as directed by DoHS.
5.Mother must go to a psychologist and/or psychiatrist as directed by DoHS for assessment and treatment and must allow reports to be given to DoHS.
6.Mother must submit to testing for alcohol and drug use as directed by DoHS and must allow the results to be given to DoHS.
7.Mother must participate in assessment and/or treatment for alcohol and drug dependence as directed by DoHS and must allow the results to be given to DoHS.
8.[The grandmother] must not expose the child to the drinking of alcohol or use of illegal drugs.
9.Mother must not drink alcohol or use illegal drugs when with the child and must not be affected by alcohol or illegal drugs when with the child.
10.[The grandmother] must tell DoHS within 24 hours of changing address.
11.Mother must not live or have contact with the child other than during access.
12.[The grandmother] and mother must not expose the child to physical or verbal violence.
13.[The grandmother] and mother must not expose the child to the drinking of alcohol or use of illegal drugs.
14.[The grandmother] and mother must not threaten or assault DOHS staff.
15.[The grandmother] must take the child to the Maternal & Child Health Nurse as often as the Nurse recommends.
16.[The grandmother] must take the child to the doctor for regular check‑ups as required by DoHS.
17.[The grandmother] must send the child to school every school day unless the child is ill and a medical certificate is obtained.
18.On the completion of 3 successive drug screens, which indicate reduced use of illegal substances, mother and father may have access with the children twice per week. DoHS or its nominee will supervise access unless DoHS assesses that supervision is not necessary.

Although the decision of the magistrate to place the children with the grandmother was reflected in the interim accommodation orders, his decision to revoke the custody to secretary order was not. As s 262(6) of the Act prohibited an interim accommodation order from being made in respect of children who were the subject of a custody to secretary order, the secretary brought the matter back on before the magistrate on 4 November 2009.

At that hearing, the secretary was represented by a different solicitor and the mother and grandmother were represented by their respective solicitors. The secretary submitted that interim accommodation orders could not have been made because the custody to secretary orders had not been revoked. The magistrate dealt with that submission by confirming that he had revoked the custody to secretary orders because ‘it is in the best interest of the children’.

The magistrate also gave further oral reasons for making the orders. His Honour said this was a case in which ‘four Aboriginal children [had] been split up and had – went to different carers’, which was ‘entirely inappropriate’. He was of the view that the grandmother was ‘an appropriate person to care for the children until some time next month when it returns’. This was a reference to his Honour’s order that the further hearing in relation to the matter would be heard in the Children’s Court at Shepparton on 14 December 2009. His Honour went on to say the department’s arrangements ‘fell well short of care for these children’s best interests. I was outraged that ethnic issues – the cultural issues – had not been addressed.’ He expanded on these reasons thus:

I was outraged that the children had been separated, that was behaviour in my view falling far short of the duty that the Department owes these children, and it was for that reason despite the poor environmental issues, and the issue in relation to getting the grandmother getting the kids to medical treatment, in my view the children – the situation that the children had been left in was untenable and should not continue.

Later the magistrate said his ‘strong view’ was that the best interests of the children required them to ‘be accommodated together’ and that ‘they should be living with a family member together … in a culturally appropriate relationship’. That would be with the grandmother ‘on the basis that the mother is not residing there’.

The solicitor for the secretary submitted to the magistrate that the custody to secretary orders could not be revoked without ‘expert evidence, or sworn evidence, or something to this effect’. He accepted that interim accommodation orders could be, and were, made on the basis of submissions from the Bar table, but submitted a custody to secretary order could not be revoked in such a way.

The magistrate rejected this submission. His Honour said that s 308 of the Act was silent on the evidentiary requirements for revoking a custody to secretary order and that the critical question was whether the revocation was in the best interests of the child. He said he acted on the basis of what the parties had put in the ‘submissions contest’ and the report in the court file. He said these two sources of information were sufficient for him to arrive at a view as to whether it was in the best interest of the child to revoke the custody to secretary order. Whether the magistrate made an error of law in that regard is the issue in this appeal.

PROCEDURAL POWERS OF CHILDREN’S COURT
(1) Section 215(1) of Children, Youth & Families Act

To repeat, the secretary submits the magistrate of the court could not lawfully have determined the mother’s application pursuant to a submissions contest procedure at which formal evidence was not admitted. Further, she contends the magistrate breached the rules of natural justice by revoking the custody to secretary orders at the first mention hearing of the revocation applications.

Those submissions require analysis of the statutory powers of the court, which must be interpreted against the applicable common law principles and as far as possible consistently with the Charter. I will examine those powers in two parts. In this section I will deal with the procedural powers of the court in general terms. In the next section I will examine the impact of the paramount principle of the best interests of the child on the exercise of those powers. There will necessarily be some overlap.

The application was made in the Family Division of the court. Section s 215 of the Children, Youth & Families Act regulates the conduct of proceedings in that division. Here is s 215(1):

(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.

This provision is comparable to the many others of a like nature which empower specialist courts and tribunals to conduct proceedings in a manner which is best suited to the discharge of their particular jurisdiction. There is a considerable body of authority on the scope and operation of such provisions.

The issue was fully considered by the High Court in R v War Pensions Entitlement Appeal Tribunal; ex parte Bott.[20] Under its home statute, the tribunal was not bound by the rules of evidence.[21] It had refused to allow cross‑examination on unsworn medical reports which were adverse to the applicant. Rich, Dixon and McTiernan JJ held it was for the tribunal to determine whether to require the doctors to be sworn and be cross‑examined.[22] Starke J held the tribunal was established to ‘carry out certain functions’ and given the necessary procedural powers.[23] It had to act judicially but was not required to adopt court‑like procedures and ‘was largely master of its own procedure’.[24] These judges dismissed the application for judicial review. Evatt J dissented, making an oft‑cited cautionary observation about the value of the rules of evidence even if they did not mandatorily apply.[25]
[20](1933) 50 CLR 228.
[21]Ibid 241.
[22]Ibid 244.
[23]Ibid 248-249.
[24]Ibid 249.
[25]Ibid 256.

This court has applied these principles in relation to the procedures of the Children’s Court. For example, in M v M[26] the issue was whether the court could hear two or more protection applications concurrently. The procedural powers at that time were the same as they are now.[27] Brooking J (Nathan and Byrne JJ agreeing) held these provisions allowed the court to hear protection applications concurrently, provided natural justice was observed.[28] This was analogous with the capacity of magistrates’ courts, unless restricted by statute, ‘to develop their own practice and procedure and to adapt it to continuing needs’.[29]
[26][1993] 1 VR 391.
[27]See s 82(1) of the Children and Young Persons Act 1989.
[28]Ibid 395-396.
[29]Ibid 395 (references omitted).

Single judges of this court have dealt with submissions contest hearings in the Children’s Court. This court has encouraged greater accountability and transparency in the conduct of such hearings. For example, it has encouraged the taking of transcripts.[30] Otherwise the court has not interfered with the procedure. It has continued to evolve over time in consequence. As the authorities are unreported and have now assumed some significance, I will collect them together here.
[30]The instant case has benefited from that encouragement. A transcript was made of the hearing before the magistrate and it is indispensible to the resolution of the appeal.

The weight to be given to the opinion or decision of the tribunal in a particular case will depend on the circumstances. The relevant considerations may include the field in which the court or tribunal operates, the qualifications and criteria for the appointment of its members, the information on which it acts when exercising its functions and the extent to which its decisions are supported and objectively justified by a transparent process of reasoning.[178]
[178]Ibid, 154-155. In specifying those considerations, the court referred to the similar approach of the Supreme Court of Canada in United Brotherhood of Carpenters and Joiners of America, Local 579 v Bradco
Construction Ltd [1993] 2 SCR 316 at 335; Pezim v British Columbia (Superintendent of Brokers) [1994] 2 SCR 557 at 591-592; Attis v New Brunswick School District No 15 [1996] 1 SCR 825 at 846-847; and Westcoast Energy Inc v Canada (National Energy Board) [1998] 1 SCR 322 at 353-355, 414-415.

I return now to the present case, in which I will apply the principles I have just examined.

In the present case, this court is determining a statutory appeal on a question of law from the exercise by a magistrate of the Children’s Court of that court’s procedural discretion under the Children, Youth & Families Act. Authority and principle direct that, in exercising this jurisdiction, I should adopt an appropriate degree of caution before interfering with the decision of a specialist court (or tribunal) which applies particular expertise in the discharge of its statutory functions. I should give due weight to the decision of the court that the discharge of those functions called for procedures of that kind.

I have already referred the role of the court under that Act and the provisions by which it is constituted and organised. Applications in protection proceedings in the court typically raise difficult protection, family, social and cultural issues, and require the application of specialist expertise by magistrates, in determining what is in the best interests of the child. Such applications must often be dealt with in urgent circumstances in which the court has limited time.

The Children’s Court must therefore be regarded as a specialist court which applies particular expertise in the conduct and determination of protection proceedings under the Children, Youth and Families Act. The magistrate who heard the case was assigned to the court by the president after having regard to his experience in matters related to child welfare.[179] That is sufficient to establish his Honour’s individual specialist expertise.
[179]See above and s 507(2) of the Children, Youth and Families Act.

As to the degree of weight I should attach to the decision of the court, it was exercising a procedural discretion in the specialised jurisdiction of children’s protection proceedings. The magistrate was appointed in the light of his experience in relation to matters of child welfare. His Honour conducted a public hearing of which there is a transcript and the materials on which he acted are publicly known. The court acted in a transparent manner and gave a reasoned justification for adopting the submissions contest procedure. Therefore, this court should attach considerable weight to the view of the Children’s Court that the submissions contest procedure was appropriate in the circumstances of the case before it.

I would not hesitate to exercise this court’s appellate jurisdiction to intervene if the court exercised its procedural discretion in a manner which was legally unreasonable, which breached the rights of parties to procedural fairness or their human rights, such as their right to a fair hearing,[180] or which, under colour of being in the best interests of the child, actually represents an unjustified departure from the fundamental standards of justice which are required of a court. That is not this case.
[180]As occurred in Re Timothy (2010) 43 Fam LR 234.

(2) Interests which had to be taken into account

In determining the mother’s application to revoke the custody to the secretary order, the paramount consideration was the best interests of the children. That flowed from the provisions of s 308(b) of the Children, Youth and Families Act, which directly applied to the application being made, and the general provisions of ss 8(1) and 10 (1)-(3), which applied generally to the exercise of the court’s jurisdiction.

While the best interests of the children was the paramount consideration, the children’s interests were not the only interests which the court had to take into account. The exercise of the magistrate’s procedural discretion will be legally sound if it was open in the best interests of the child, after taking due account of the other interests which had to be considered. It is therefore necessary to identify what those other interests were, and how they impacted on the procedure to be adopted by the court for the hearing and determination of the application.

The parties to the protection proceeding were the secretary, the children and their parents and the grandmother.

The secretary was responsible for the administration of the Children, Youth & Families Act and had the child protection functions specified in s 16. The officers of the secretary’s department were responsible for the engagement with the family which had occurred, for the preparation of the reports which had been filed with the court and for the preparation of the disposition report which was due to be filed under s 557. The custody to secretary orders which the mother was seeking to have revoked had been made on the secretary’s application. The secretary was the person in whose favour the orders had been made. Under the orders, the secretary had the legal custody of the children and was responsible, on a continuing basis, for taking such actions as were necessary in the best interests of the children. The secretary was a party to the mother’s application for revocation.

The discharge of the secretary’s functions with respect to the children was the principle means by which the protective purposes of the legislation were to be fulfilled and also gave effect to the human right to protection which the children had under s 17(2) of the Charter. In exercising the court’s jurisdiction to determine the revocation application, the court was required to give due consideration to the matters put forward by the secretary, to afford to her a full and fair opportunity to be heard and to respect her function as a statutory party.

The mother was legally represented at the hearing and the father of the three eldest children appeared individually to support her application. Together with the children, they formed a family, which was recognised in s 10(2) of the Children, Youth & Families Act to be the fundamental group unit in society. The maintenance of the family so formed was, by that and other provisions of the Act, part of the best interests of the child. The protection of this family was also recognised as a human right in s 17(1) of the Charter.

The family was not intact. The mother and father were separated. The mother was a drug addict with a number of health and behavioural issues which were impacting negatively on the children. Nevertheless, they were the parents of the children and they had important interests as such. Their children’s best interests were promoted by them having such contact with their parents as was consistent with protecting them from harm, respecting their rights and promoting their development.

The views of the parents as to the consequences of the removal of the children from the grandmother’s home, the importance of their children’s Aboriginal culture and whether they should be placed back with the grandmother all required consideration by the magistrate. As parties to the revocation proceeding, the parents were entitled to be afforded procedural fairness under the common law and had the human right to a fair hearing of the application under s 24(1) of the Charter.

Turning to the children, their best interests was the paramount consideration. Where those interests were inconsistent with the interests of any of the other parties, those interests were the dominant interests. As parties to the revocation application, the children were entitled to procedural fairness under the rules of natural justice and had the human right to a fair hearing under s 24(1) of the Charter. The two elder children, at least, were entitled to have their views taken into account and given appropriate weight (s 10(3)(d)) of the Children, Youth & Families Act). These children were also entitled to appear before the court by their independent legal representatives, if that was their wish (s 524(2)).

When the best interests of the children were being considered, the court was first and foremost required to ensure the children were protected from harm, their rights were respected and their development was promoted (s 10(2)). The children were entitled to this consideration under ss 8(1) and 10(1) and (2) of the Children, Youth & Families Act. Under s 17(2) of the Charter, they had a human right to such protection as was in their best interests and was needed by them as children. The children also formed with their parents a family, the fundamental group unit of society, which was recognised in s 10(3)(a) in terms of their best interests and specified as a human right in s 17(1) of the Charter. The importance of their relationship with their parents was recognised in various other respects in s 10(3).

The children were Aboriginal. Their cultural and spiritual identity as such was an important consideration, as was their connection with their Aboriginal family and wider community. These circumstances of the case engaged the additional decision‑making principles in s 12 and the Aboriginal child placement principles in s 13, which applied in relation to protection decisions and orders concerning Aboriginal children. The Aboriginal cultural rights of the children were also recognised in s 19(1) and (2) of the Charter.

The children had an interest in not being separated. As Crispin J held in A v Chief Executive, Department of Disability, Housing and Community Services,[181] ‘[c]ourts have long been reluctant to make custody arrangements that separate siblings.’ The importance of siblings being placed together when they are placed in out of home care is recognised in the best interest principles as being in the best interests of the child (s 10(3)(p)).
[181](2006) 160 ACTR 7, [49]. In making that remark, Crispin J cited relevant authorities in the Family Court of Australia.

The grandmother (and grandfather) did not have the legal right to daily care and control of the children and to make decisions concerning them. Therefore she was not, in formal terms, the ‘parent’ of the children as defined in the Act.[182] But the mother being drug addicted, the grandmother was the de facto carer of the children. She had a close and caring bond with them and was growing them up in her home. She was legally represented as a party to the proceeding. She also formed part of the extended Aboriginal family. Under the Aboriginal child placement principles, the grandmother was a person who, as a priority, was someone with whom the children should be placed, if possible.[183] Under the Aboriginal decision-making principles, she was a person who was entitled to consultation as a member of the Aboriginal community to which the children belonged.
[182]See the definition of ‘parent’ in s 3(1) and ‘custody’ in s 5.
[183]Section 13(2)(a).

Such were the interests of the various parties to the revocation proceeding. I can see no basis for concluding that the magistrate failed to take any of these interests into proper account. For the reasons I have already given, in the circumstances of this case, I do not regard the failure of the magistrate to adjourn the proceeding so the two elder children might get legal representation as a vitiating factor. In my view, the magistrate adopted the submissions contest procedure because, in the circumstances, it was the appropriate means of determining what was in the best interests of the child and was fair to the parties. That was especially so because the critical facts were not in serious dispute and, at the hearing, there emerged a new and dispositive consideration.

(3) Critical facts not in serious dispute

Rather than adjourn the matter to a full hearing, the magistrate acted on the basis of the information which was before the court. That information was considerable. It was contained in reports filed previously with the court by the department, and also in the submissions which were made from the bar table by the legal representatives of the parties during the submissions contest hearing. On the basis of that information, I think the magistrate came to the view that the critical facts were not in serious dispute and constituted a proper basis for the exercise of the court’s jurisdiction to revoke the order.

The evidence in the appeal, including the affidavits, transcript and reasons of the magistrate, has enabled me to identify what these facts were, as they would have appeared to his Honour. On that evidence, these were the facts:

· the four children were Aboriginal and had lived together for some years with their mother in the home of the grandmother and grandfather, with the knowledge and support of the department

· the grandmother was the de facto carer of the children, supported by the grandfather

· the mother was drug addicted and her behaviour was a physical and emotional disruption to the children and a serious disturbance of the home of the grandmother

· after a long period of trying to encourage the grandmother and mother to care properly for the children, and numerous appearances in the court in which the children were placed on interim accommodation orders, the secretary applied for custody to secretary orders

· the court made custody to secretary orders by consent, but the department left the children in the grandmother’s care on conditions, without requiring the mother to move out of the home, and the family made clear that if the children were to be removed from the grandmother’s care, they would apply to have the order revoked

· the secretary’s protective concerns worsened and the department removed the children from the grandmother’s home

· as Aboriginal out of home care was not available, the children were placed with non-Aboriginal carers; as carers for the four children together were not available, they were separated and placed with different carers

· the elder children were absconding from their carers, not attending school and exhibiting behavioural difficulties

· in view of these developments, the mother had decided, in the best interests of the children, to move out of the grandmother’s home; when the department refused to place the children back with the grandmother, the mother applied for the revocation of the order

· on the first mention day of the revocation application, the mother reiterated her intention to move out of the grandmother’s home, and sought the urgent revocation of the custody to secretary order on that basis, supported by the father of three of the children and the grandmother

It was against that factual background that the magistrate had to determine how to deal, in the best interests of the children, with the mother’s request for the revocation of the orders. The choice which his Honour made was to deal with the application at the mention hearing by way of a submissions contest, during which he was informed of the mother’s intention to leave the grandmother’s home.

(4)Mother leaving grandmother’s home was new and dispositive consideration

In the present case, the magistrate was entitled to be alarmed at the events which took place after the removal of the children from the home of the grandmother. Then his Honour was informed at the hearing that the mother had decided to leave the grandmother’s home. On the facts and circumstances as revealed by the department’s reports and by the submissions of the legal representatives of the parties at the hearing, the magistrate was entitled to treat that new information as a dispositive consideration. Although issues remained about the physical condition of the grandmother’s home and other important matters concerning the welfare of the children, a careful and reasoned evaluation of what was in the best interests of the child left clearly open to the magistrate the choice of revoking the orders and placing the children back in the care of the grandmother, on conditions.

On the one hand, this was not a case in which further investigation was necessarily required, as a matter of law, before the orders could be revoked. On the other hand, the magistrate could not have been criticised for adjourning the hearing of the application pending such further investigation, as submitted by the secretary. Both courses were within the zone of the magistrate’s procedural discretion and legally open. It was for the magistrate to exercise that discretion to determine which course would be followed.

Most importantly, despite the lack of formal evidence, the facts were reasonably clear and not really disputed: the principal negative force in the lives of the children was (regrettably) the behaviour of the mother resulting from her drug‑addiction, the mother had decided (in the best interests of the children) to move out of the home, there were serious problems with the placement arrangements which the department had made, especially because the four children were living separately with non‑Aboriginal out of home carers, and the family wanted the children to go back to the grandmother, which the children also wanted.

If those facts were in serious dispute or needed full investigation, if placement in the grandmother’s home would not be in the children’s best interests even with the mother not living there or if there were other viable options which could have been urgently adopted, then the submissions contest procedure, and making the revocation order, might not have been legally defensible. But in the circumstances of the case, in my view the magistrate did not err in law in adopting the procedure and in making the orders which he did. The magistrate did not breach the rules of natural justice by adopting that procedure.

One reason why the secretary submits that the submissions contest procedure was inappropriate was that the orders made by the magistrate were final and not interim. However suitable such a procedure may be for urgent cases involving orders of an interim nature, it is not suitable for cases where final orders are made. A final order disposes of the application completely, subject only to appeal, whereas an interim order only maintains the position on a temporary basis, subject to the safeguard of the parties having a contested hearing where they can lead formal evidence.

Many of these points may be accepted and provide reasons why, in cases involving final orders, it may be inappropriate to adopt a submissions contest procedure. However, these points do not necessarily apply to all cases involving final orders. The paramount principle is the best interests of the child, which does not necessarily require a formal hearing in all cases where final orders are to be made. It was for the magistrate to determine what kind of hearing was appropriate in the case before the court, and his Honour made no error of law in adopting the submissions contest as that procedure.

Moreover, I do not completely accept the interim orders – final orders dichotomy in the context of these protection proceedings. The proceedings were for the best interests of the child. The secretary had continuing statutory obligations in that regard. The children had the human right to continuing protection in s 17(2) of the Charter. If, contrary to the magistrate’s expectations, the departure of the mother from the grandmother’s home did not address the secretary’s protective concerns, the secretary could have made a fresh application at any time. Having made the revocation orders, the magistrate did not see the court’s role as at an end. His Honour placed the children on interim accommodation orders on strict conditions which the department would monitor and made other orders for the return of the proceeding back to the court in six weeks. He referred in his reasons to the possible need to make different orders if the revocation orders proved to be mistaken.

The secretary further submits the magistrate could easily have stood the matter down and asked the solicitor for the secretary to have the department’s case‑worker come to court to give sworn evidence about why the children were in need of protection.

I appreciate the force of these submissions. However, under s 215(1) it was the magistrate’s responsibility to adopt an appropriate procedure for conducting the case and obtaining the necessary information. While it was open to the magistrate to stand the matter down, his Honour was not legally obliged to do so. I think the magistrate concluded that the department’s reports and the information obtained during the hearing were a sufficient and proper basis on which to act. That conclusion was open to his Honour in the circumstances, especially because of his view, which was also open to him, that withdrawal of the mother from the grandmother’s home was a new and dispositive consideration.

I do not accept the secretary’s criticism that, after revoking the custody to secretary orders, the court made interim accommodation orders instead of acting under s 310(3). I think the magistrate did so because he considered the court had continuing protection applications before it, applications which were not determined by the revocation of the custody to secretary orders. Making interim accommodation orders, and bringing the matters back on before him in six weeks, fitted with the close management which his Honour intended would be given to the family by the department and the court, an intention which was also revealed by the strict conditions which he imposed. Those orders also restored the case to the position it was in before the custody to secretary orders were made.

Even if the magistrate did err in this respect, it was not an error which in any way affected the exercise the court’s discretion to adopt the submissions contest procedure.

(5) Revoking custody to secretary orders without disposition report

I do not accept the secretary’s submissions that the consideration of a disposition report was a condition precedent to the exercise of the magistrate’s power in s 308 to revoke the custody to secretary orders. There is a relevant distinction between a case where the secretary has not prepared a report, which was the present case, and a case where the secretary has prepared a report and given it to the court, which was not the present case.

The duty in s 557(1) to prepare a report is imposed on the secretary. The additional provisions with respect to the contents of (s 558) and access to (ss 559, 561 and 562) the report fall into the same category. The court has certain powers in relation to reports, such as the power to direct a report to include specified information (s 558(d)), to restrict access to a report (s 559(2)) and to order the preparation of additional reports (s 560). These provisions do not expressly or implicitly prevent the court from determining a revocation application where the secretary has not produced a report.

The secretary’s submissions on this point amount to the proposition that the consideration of a disposition report is a mandatory relevant consideration to the exercise of the revocation power in s 308. Where a disposition report has been prepared and given to the court, I would accept that proposition. In that case, the report has been prepared by the secretary under s 557(1) and, implicitly, must be considered under s 308. Treating consideration of a report as mandatory in those circumstances is consistent with the nature of the revocation power, the function of the secretary and the place of the report in the statutory scheme. It is going too far, however, to say that the power in s 308 cannot be exercised until the secretary has prepared a report and the magistrate has considered it. That proposition must be rejected for a number of reasons.

The primary obligations in s 557 are placed on the secretary, not the court. In particular cases, the secretary may fail to discharge her obligation to prepare a report or, as in the present case, may not have had sufficient time to do so. The making of an order which is manifestly in the best interests of the child cannot be held up in these circumstances.

Notably, the mandatory requirement for receiving and considering a report before making a protection order (s 276(1)(a)) has not been enacted with respect to making a revocation order. This is explained by the significant difference between the two categories. When the court is considering whether to make a protection order, the child may (for example) be taken away from their parents. In that case, having and considering the report is a necessary safeguard. When the court is considering whether to revoke a custody to secretary order, the child will be freed of the order. In that case, having to wait for a report might be an unwarranted impediment to making an order which was manifestly in the best interests of the child.

It is also important to bear in mind the purpose of the report. It is not an end in itself. It is to enable the court to make orders which are in the best interests of the child. The best interest principle encourages the making of decisions without delay (s 10(3)(p)) and there are limitations on the court’s adjournment powers which reflect the same purpose (s 530(10)). There is no express requirement in s 308 (or elsewhere) that the court wait for a disposition report. The implication of such a requirement in all cases is not consistent with the terms of the relevant provisions, the nature of the revocation power and the best interests of the child for which it must be exercised.

Therefore, where the secretary has not prepared a report and given it to the court, where the facts and issues are sufficiently clear without a report and where the best interests of the child manifestly so require, the court has power under s 308 to revoke a custody to secretary order without considering a disposition report. His Honour committed no error of law in doing so in the present case.

By expressing that conclusion, I am offering no encouragement to the court to exercise its revocation power without considering a disposition report or allowing the secretary time to prepare one. I have repeatedly emphasised that the functions of the secretary and disposition reports are important. Under the provisions of the Children, Youth and Families Act, the legislative expectation is that, in the ordinary course of events, the secretary will prepare a report and the court will have and consider it before revoking an order. It is only where the best interests of the child manifestly take the case out of the ordinary that having and considering the report will not be mandatory to the making of such an order. The present case is such a case.

In conclusion, the court did not err in law or breach the right of the secretary to a fair hearing by exercising its procedural discretion to determine the revocation applications by conducting a submissions contest hearing. Ground two of the secretary’s amended notice of appeal must fail and the appeal must be dismissed.

CONCLUSION

Four Aboriginal children were removed from their grandmother’s home by the Secretary of the Department of Human Services because they were in need of protection. They were then placed separately in out of home care with non-Aboriginal families. No family was available to take the four of them together and no Aboriginal family was available to take any of them at all.

The mother applied to the Children’s Court for the revocation of the custody to orders under which the secretary moved the children. The magistrate determined that application on the first mention day after conducting a submissions contest hearing in which his Honour obtained information, but not actual evidence, from the department’s reports and the legal representatives of the parties. His Honour revoked the orders and made interim accommodation orders (on strict conditions) returning the children to the care of the grandmother, pending the further consideration of the matter by the court in six weeks.

The secretary has appealed against the magistrate’s decision on the ground of error of law. She submits the magistrate should have conducted a formal hearing at which at least some formal evidence was taken.

On the information given to the magistrate, the real risk to the wellbeing of the children was the drug-taking activity of their mother and her disturbance of the home of the grandmother in which the family was living. Through her legal representative, the mother informed the magistrate she was leaving the grandmother’s home. In my view, that was new and significant information which made it open to his Honour to make conditional orders returning the children to the grandmother’s care pending the further consideration of the matter by the court.

Although this and other relevant information was not given to the court as sworn evidence, the facts which it revealed were not in serious dispute. The mother, the grandmother and the secretary were all represented at the submissions contest hearing. The magistrate made clear he was considering making revocation orders on that day. No party sought an adjournment. The main debate at the hearing concerned the orders which the court should make (if any). In the circumstances, the information was sufficiently reliable and probative to form a proper basis for the magistrate’s decision.

The Children, Youth and Families Act 2005 requires the court to have regard to the best interests of the child as the paramount consideration. In my view, that consideration not only governs the orders which the court can make in the Family Division. It also governs the procedures which should be followed in protection proceedings in that division, which must also be fair to all of the parties.

The legislation gives the court a wide discretion as to the procedure which can be adopted in protection proceedings. The court is required to conduct such proceedings in an informal manner and is permitted it to inform itself as it sees fit, despite any rule of evidence to the contrary. These procedural powers enable the court, in its discretion, to conduct protection proceedings in a flexible manner, without legal forms and in the best interest of the child. In appropriate cases, including in revocation proceedings, conducting a submissions contest hearing which is fair to all of the parties falls within the zone that discretion.

The procedural powers of the court are not absolute. The court must observe the rules of natural justice and act compatibly with the human right of children, parents and potentially others to a fair hearing under s 24(1) of the Charter of Human Rights and Responsibilities Act 2006. It must respect the important function of the secretary under the Children, Youth and Families Act, including her role as a protective intervener, and her position as a statutory party. In the present case, adopting the submissions contest procedure was open to the court in the best interests of the children and did not breach the procedural rights of the secretary or any other party.

Accordingly the appeal will be dismissed.

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[2011] VSC 42

22 February 2011 (revised 20 June 2011)