Secretary to the Department of Families, Fairness and Housing v AM (a pseudonym)
[2023] VSC 291
•2 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 01907
| IN THE MATTER of s 271 of the Children, Youth and Families Act 2005 | |
| BETWEEN: | |
| SECRETARY TO THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING | Appellant |
| and | |
| AM (a pseudonym) (and others according to the attached Schedule) | First Respondent (Mother) |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25-26 May 2023 |
DATE OF JUDGMENT: | 2 June 2023 |
CASE MAY BE CITED AS: | Secretary to the Department of Families, Fairness and Housing v AM (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 291 |
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CHILDREN – Appeal from Children’s Court Interim Accommodation Order – Nature of appeal – Evidence on appeal – Family violence - Best interests of children – Condition that mother and children reside at address not known by father – Children, Youth and Families Act 2005 ss 10, 162, 240, 241, 261, 263,265.
HUMAN RIGHTS – Protection of families and children – Freedom of movement – Right to have privacy and home not unlawfully or arbitrarily interfered with – Best interests of child – Charter of Human Rights and Responsibilities Act2006 ss 6(2),12,13,17, 32.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms J Davidson | Child Protection Litigation Office Department of Families, Fairness and Housing |
For the First Respondent | Ms E Mallett SC and Ms G Cafarella | Claudia Grimberg Lawyers |
For the Second Respondent | Ms J Taylor and Ms F Livingstone Clark | Dale & Younis Legal Pty Ltd |
HIS HONOUR:
The Secretary to the Department of Families, Fairness and Housing (‘the Secretary’) brings an appeal under s 271 of the Children, Youth and Families Act 2005 (the ‘CYF Act’) against an interim accommodation order (‘IAO’) made by the Children’s Court of Victoria on 5 May 2023.
The litigation concerns two children, a boy aged 3 years and 9 months, and a girl aged 13 months. The boy has a serious medical condition that requires chemotherapy, and a speech delay. Their parents have been married for four years and arrived to live in Australia two years ago. The mother entered Australia on a spouse’s visa. The family has been living in suburban Melbourne.
On 4 May 2023, following a report to Child Protection, which forms part of the Department, the Secretary placed the children in emergency care and initiated a Protection Application dated 4 May 2023. The Secretary’s application was based on reports of family violence by the father at the family home. The Protection Application was made on grounds contained in s 162(1)(c), significant harm as a result of physical injury, and s 162(1)(e), emotional or psychological harm.
Section 242(2) requires that where a child is placed in emergency care, the Children’s Court must hear an application for an IAO as soon as practicable and in any event within one working day after the child was placed in emergency care.
The application for an IAO was heard before the Children’s Court on 5 May 2023 by a ‘submissions contest’ whereby the application is determined on assertions and submissions made by the parties present at the hearing.[1]
[1]See Purcell v RM & Ors [2004] VSC 14, [19].
The Magistrate made an IAO containing a number of conditions, one of which was that the father may reside with the mother and children.
Late on the evening of Friday 5 May, the Secretary commenced an appeal in this Court against that IAO. The Secretary sought a condition that the Children’s Court had not been prepared to add, which was that:
The mother and children must reside in a safe undisclosed address known to DFFH but unknown to the father.
I will refer to that condition as the ‘Secretary’s condition.’
I heard the appeal as Practice Court judge at a hearing commencing late on Friday 5 May and finishing early the next morning. I did not grant the order that the Secretary urgently sought, but I ordered that Department representatives visit the family home each day over the next four days and that an early hearing of the appeal occur. After an adjourned hearing, I heard the appeal on 25 and 26 May 2023.
The Secretary’s notice of appeal contends that a different IAO should have been made: in addition to the terms of the IAO made by the Children’s Court, I should add the Secretary’s condition.
Section 271 provides for an appeal by way of rehearing and that requires a decision by this Court on the evidence before it.
The parties disagreed at to the extent to which new evidence could be admitted on the appeal. The mother’s counsel submitted that new evidence could be led only when, to apply the words of s 271(2), the Court ‘thinks that a different [IAO] should have been made’ in which case the Court can set aside the Children’s Court order and ‘make any other order that it thinks ought to have been made’.
In my opinion, the authorities are against that proposition and permit the admission of additional, relevant evidence.[2] On the hearing of an appeal, any evidence presented to the magistrate may be supplemented by further evidence bearing on the best interests of the child.
[2]See ZD v Secretary to the Department of Health and Human Services [2017] VSCA 806, [5]-[6] and Sani v Secretary to Department of Families, Fairness and Housing [2021] VSC 366 [11]-[15].
The other point to note is that the authorities suggest that in making an assessment of risk to a child, it is not necessary for the Secretary to actually prove the allegations with ‘cogent evidence’ and that instead, the Court is required to accept the evidence ‘at its highest’.[3] The accommodation order sought is an interim order.
[3]See Secretary to the Department of Health and Human Services v Children’s Court of Victoria [2018] VSC 183, [32]; cf Secretary, Department of Human Services v Children’s Court of Victoria [2012] VSC 422; Sani (a pseudonym) v Secretary of the Department of Families, Fairness and Housing [2021] VSC 366..
Section 263(1) enables the Court to make an IAO with respect to the accommodation of a child. Section 263(7) enables the Court to include conditions on the IAO by providing:
(7)An interim accommodation order may include any conditions that the Court or bail justice considers should be included in the best interests of the child.
Section 263(8) provides that such conditions ‘may relate to the contact with a parent or other person by the child’.
Section 265(1) provides that a parent is entitled to be given details of the child’s whereabouts under an IAO unless the Court directs that those details be withheld from the parent. Under s 265(2), the Court may only give such a direction if it is of the opinion that the direction is in the best interest of the child.
Division 2 of the Act contains the best interest principles which are referred to in s 10(1) as follows:
For the purposes of this Act the best interests of the child must always be paramount.
Section 10(g) provides that a child is only to be removed from the care of his or her parent if there is an unacceptable risk of harm to the child.
Section 162, which deals with children in need of protection, refers to a child who has suffered, or is likely to suffer, significant harm as a result of physical injury or who has suffered, or is likely to suffer, emotional or psychological harm.
Events leading to the Protection Application
I now set out a summary account of the history of the Department’s dealings with the family. It is based on the Secretary’s affidavits, submissions and case notes. I have not received the father’s account of events and therefore, the conclusions I reach below are not based on any final findings of fact, but are made for the purposes of deciding this appeal about an IAO.
Prior to making the Protection Application, the Department, through Child Protection had been in contact with the family following allegations that the children were at risk of injury from family violence committed by the father towards the mother.
In May 2022, the mother disclosed to hospital emergency staff that she was suffering ongoing verbal abuse and financial control by the father and that he had threatened her with physical harm. After a verbal argument, she had called police, however he was not removed from the home. Child Protection conducted a MARAM[4] risk assessment which concluded that the risk was low due to the involvement of community supports.
[4]The Family Violence Multi-Agency Risk Assessment and Management Framework.
On 16 June 2022 the mother took the children to stay with a maternal aunt in regional Victoria. Child Protection reported that it had received a report that the mother and children were at serious risk of family violence perpetrated by the father towards the mother. The report suggested that the father was verbally, emotionally and financially controlling towards the mother and had coercively controlled, manipulated, and intimidated her. The mother had been wanting to leave the relationship for some time but when she approached a Violence Response Centre, they said that they could not assist her because there was no physical violence present at that time.
Child Protection assessed that the mother was acting proactively and was engaged with support services so there was no further role for it at that time. The case was closed.
On 31 July 2022, the father attended the aunt’s home and took the mother and children back home.
On 10 August 2022, Child Protection workers attended the family home to discuss a report of the children being at risk of family violence by the father. The mother told them that she had left the aunt’s home after the father and elders from his community had attempted to ‘mediate’ the situation and tried to persuade her to return to the family home. She said that when she was pregnant, the father’s behaviour towards her was ‘not good’ and his abusive behaviours escalated when her daughter was born. She stated that she experienced the father’s behaviour towards her as ‘mental torture’ and when she could not take it anymore, she left the relationship. There were ‘some differences’ between them still, but they had reconciled and were living together. Child Protection reported that the mother had vulnerabilities including being new in the country, being unable to drive and not ‘knowing her way around.’ When asked if the father had been physically violent towards her in the past, she replied ‘not much’ and explained that she was careful not to raise her voice towards him due to her fear that he might physically assault her. She recalled an incident where the father threw a boiled egg at her hitting her on her hand, when she was pregnant with her daughter. The son witnessed this incident and had tried to comfort her and wipe away her tears. The mother said that most of the father’s abuse towards her had been emotional in nature. If she saw any sudden changes in the father’s behaviour she would leave. She felt comfortable to call police if required. She said that a lot had changed since her recent reunion with the father, and he had committed to change and the way he spoke to her had changed. The mother agreed to work with family violence services for ongoing safety planning. She considered this to be a good idea as the father may ‘become worse’.
Child Protection conducted a MARAM family violence risk assessment, which assessed the risk to be serious. The daughter was classified as requiring Intensive Infant Response from Child Protection, which meant that weekly visits were required to ensure her safety.
In November 2022, as the family relationship appeared to have improved, Child Protection decided to close its involvement with the family. It told them it expected that the children would attend day care regularly and receive support from the wellbeing team; that the children would not witness any further incidents of family violence; that the mother would follow through the safety plan discussed with Child Protection; that the parents were to engage with family violence and mental health supports; that the father was to engage with a Men’s Behaviour Change Program and that any incidents of family violence must be reported to the police.
On 19 April 2023, the mother left the family home to move into a Family Violence Response Centre, but returned home in the middle of the night because the son was unwell and was very attached to his father, and the mother did not want to keep the children away from him. The father told her that he was sorry, had made a mistake and would like her to return home.
On the same day, Child Protection received a report in relation to increasing family violence committed by the father against the mother. The report included that the father was regularly sexually violent towards the mother and was verbally and psychologically abusive to her, threatening to kill and harm her. He monitored her whereabouts through her mobile phone, which was registered in his name. The children had not been directly threatened by the father but had been exposed to this intimidating and violent behaviour.
A MARAM assessment concluded that the mother was at ‘serious’ risk requiring ‘immediate protection’, being the highest level of family violence which the MARAM framework recognised. It recorded that the mother had disclosed that the father's aggression was increasing in severity and frequency. He was threatening and intimidating ‘all the time’ and used ‘bad language’ towards the mother. The mother addressed the risk of physical abuse by walking away and removing herself from the room when the father’s conduct was escalating. An argument had occurred between the mother and father which led to him threatening her and stating, ‘if it wasn't for the children, I could kill you’. He had threatened to hit her with a belt. The mother experienced frequent psychological abuse.
Child Protection contacted the maternal child health nurse working with the mother and learnt that she had an appointment on 4 May. It decided that the safest way in which to engage the mother and further investigate the concerns would be to try to meet with her without the father present at the upcoming appointment with the nurse. But on 4 May, Child Protection was informed that the mother had cancelled her appointment and that the children had been withdrawn from childcare.
On the same day, Child Protection conducted a SAFER risk assessment which was informed by a risk assessment recently conducted as well as by other information. Child Protection assessed the father as responsible for harm in relation to ongoing and significant perpetration of family violence, including coercive control, emotional and psychological abuse, rape and threats to kill. His behaviour was increasingly aggressive and intimidating.
Also on the same day, Child Protection attended the family home and interviewed the mother. The mother advised that the father was a good man, but his ‘anger would escalate for tiny reasons, and he would escalate in seconds’. She advised that when the father was extremely angry, he becomes verbally abusive towards her and denigrated her parents who were both deceased. The mother stated that she was fifty percent to blame for their problems because her mood fluctuated as a result of a medical procedure. The mother’s story varied in some respects from previous accounts as she denied that the father had made threats to kill her and denied that he has tracked her via her phone, but the mother confirmed that the father has her phone number registered in his name. She also appeared to withdraw her statement that he had raped her, attributing it to a misunderstanding by persons who had interviewed her. Child Protection assessed the mother as having limited insight into the impact of family violence on her and the children. She said that she wanted to give the father a chance, but if his conduct reoccurred, she would leave him, with, or without, the children.
Child Protection’s assessment was that:[5]
(a)There are no concerns relating to the care of the children by the mother, but there are concerns about her capacity to protect the children from the impacts of family [violence] perpetrated by the father while she remains in the home with him;
(b)The mother and children are at unacceptable risk of harm if they remain in the family home. The home environment involves high levels of family violence, including coercive control, psychological abuse, physical and sexual harm that is known to have a significant impact on children’s developmental and emotional wellbeing. The mother has been assessed at serious risk of harm which could include death. As a female and only one year old, [the daughter] is also at serious risk of physical harm. As a male child, the risk of the father physically harming [the son] is lower, but there is a possibility of there being ‘collateral damage’ if he were present and serious psychological harm to the children if their mother were killed by their father.
[5]Affidavit of Rachel Greenberg, 15 May 2023, [21].
Child Protection’s assessment was that it was in the best interests of the children that they be placed in the care of their mother on condition that they reside in a location unknown to the father. Child Protection pointed out that exposing children to family violence is a form of family violence with neurological consequences affecting developing brains. Its assessment of the risk posed to the children was not reduced because the father has not directly caused them physical harm. The Secretary pointed to a large body of research that established the often devastating impact on children living in a home where family violence occurs. These impacts are greater for children under four years old.
Child Protection pointed to additional cultural factors facing the mother, who was an immigrant woman on a temporary partner visa. In such circumstances, the woman was often beholden to her male partner. Child Protection’s assessment was that the likelihood of serious harm or death for the children had increased substantially since the mother and children left the Family Violence Response Centre and returned to the family home. The father was now aware that the mother has been disclosing information about his behaviour and that Child Protection was attempting to restrict his access to the children for their safety.
Child Protection having formed the belief that the children were in need of protection, commenced a Protection Application.
The Secretary considered that the decision of the Children’s Court did not adequately take into account the following matters. The current state of knowledge about the significant impacts of family violence on children. The fact that the mother's instructions were likely to be heavily influenced by the father's presence and her fears of intimidation, coercion, physical and verbal violence and controlling behaviours. The cultural factors and pressures facing the mother and the reduced likelihood that she would report what was occurring in the home. The mother's visa status and her concerns that leaving the father could have adverse impacts on it.
Events after 5 May 2023
Next are events occurring after 5 May and which therefore were not before the Magistrate. I again note that the father’s account of events is not before the Court and I only will make findings according to the standards required for an IAO.
On 11 May, Child Protection workers spoke with the father who stated that he did not understand why they were involved, that he had ‘done his part’ to provide care to the children and has never engaged in any acts that would put them at risk.
On 12 May, Child Protection workers interviewed the mother who acknowledged that she needed to keep herself safe to be able to keep the children safe. She felt that the father was willing to change because of how he was responding to her.
In another conversation that day, the mother told Child Protection workers that she understood why Child Protection was involved, that she was aware when a safety risk arose and she would then take steps to ensure the children’s safety. Child Protection considered that she showed limited insight on the impact of family violence on children.
On 13 May, the mother and the children travelled to regional Victoria to stay with a maternal aunt. Child Protection visited the mother at the aunt’s home. On one such occasion, the mother stated that she was safe and under no pressure from her husband or family to retract her initial disclosures and, on a previous occasion, because she had felt that the children were missing their father, she had gone back to him and they agreed there would be no more verbal abuse between them. She said that he had not physically abused her and that she had been going through postnatal depression and hormonal changes. On another occasion the mother said that separating her and the father would make their relationship worse rather than better.
On 19 May, the mother returned to Melbourne and, after speaking to Child Protection workers, moved into a safe house with the children, where at the time of this hearing, she remained.
On the same day, in one of a number of conversations, the mother told Child Protection workers that she had decided that she would not spend the rest of her life with the father because it was risky if she went home and that she wanted to go into the safe house. She had tried to work things out with the father and despite what he said, he did not change.
On 22 May, the mother told a Protective Services worker that the father had not treated her well and that ‘a lot of things’ had happened. She no longer wished to hide them from anyone and did not want her children to have any contact with their father. She has given him a lot of opportunities to improve but he had not. She did not want to be a ‘slave’ to him, wants to have some rights of her own and to live a life where she can do things she likes.
On 23 May, the mother told Child Protection that since the court hearings, she had tried her hardest to save the relationship with the father, however, he was making it extremely difficult. Every time Child Protection employees visited the home, he would start an argument, blaming her and verbally abusing her. The worst argument was the night before she moved to the maternal aunt’s home when the father became extremely angry with her. The children were present during these arguments. Every day the father blamed her and questioned why Child Protection came to their house and to the childcare centre. In some instances the father threatened to harm or kill her and to slap her or hit her with a belt if she spoke another word. During arguments, the father would tell the mother that if she wanted to go, she could, but the children would live with him. When the mother explained the impact this would have on her, he said that the children would forget her in 1-2 months. She described times in the previous year when upon her hearing the father’s car in the driveway after he returned from work, her body would ‘shiver and shake’ with fear of his arrival.
The mother said that when the daughter was three or four months old, the son was unwell one night and was keeping the household awake. The daughter started to cry in her cot and the father ‘roughly’ and ‘forcefully’ shook her with his hand to get her to stop crying. In another episode when she was 5-6 months pregnant with the daughter and advised the father of the gender of their baby, he was dismissive and did not want to accept that they were having a baby girl. Although the father has never directly threatened the children, he yelled at them a lot. By way of example, when she arrived in Australia, the son, who was about one and a half years old would often cry in the car as it was a new place for him and he was extremely sick at the time. The father would often get ‘very angry’ and ‘shout’ at the son ‘badly’.
Legal Issues
An issue arose from the form of the Protection Application because it did not specify whether the children had been placed in emergency care. The form contained the line:
The child *has/* not been placed in emergency care
Neither alternative had been deleted.
But the evidence establishes that the Secretary, through Child Protection, decided to place the children in emergency care. This having occurred, the Children’s Court was required to hear an application for an IAO ‘as soon as practicable and in any event within one working day after the child was placed in emergency care’.[6] That is what occurred here. The IAO made by the Children’s Court released the children into the care of their parents as permitted by s 263(1)(b).
[6]Section 242(3).
A further argument was raised about the distinction between conditions of an IAO under s 263(1)(b) releasing the children into the care of their parents or a parent and the placement of the children under s 263(1)(c) to (g). Counsel for the mother contended that an IAO made under paragraphs (a) and (b) does not contain a power of placement of a child which is provided for in paragraphs (c) to (g).
I do not accept that submission. As mentioned, s 263(7) provides that an IAO may include any conditions that the Court considers should be included in the best interests of the children. That power applies to all IAOs that may be made under s 263(1). In ZD v Secretary to the Department of Health and Human Services[7] Osborn JA said of s 262(7):[8]
[7][2017] VSC 806.
[8]Ibid [61]-[66].
The appellant submits in the context of this provision the word ‘condition’ more naturally means a situation that must exist before something else is permitted, the limitations within which something is allowed to happen, or an obligation which must be fulfilled in return for something being allowed to happen or be done.
I do not accept that the concept is so limited. It may extend to any matter affecting the terms on which a child is accommodated under an IAO, provided of course that it meets the basal test of being in the best interests of the child.
The breadth of the concept of best interest
In the course of the appellant’s submission it was contended that the concept of best interests was so broad that it could extend to matters unrelated to the purpose of an IAO.
I accept that hypothetically this may be so and that the power to impose conditions is constrained by the purpose of an IAO and the terms in which it is granted.
But for the reasons I have stated, I am not persuaded the condition in the present case goes beyond the purpose of seeking to ensure the best interests of the children during the operation of the IAOs by reference to a consideration which bears directly on the capacity to accommodate the children safely and appropriately.
I should add that there are obvious practical reasons why the legislation might adopt the flexible touchstone of the best interests of the child rather than a more prescriptive formulation of this power. It is not possible to anticipate all the circumstances which might be relevant to the adequacy of the terms on which a child is accommodated under an IAO.
In my opinion, the power to release a child into the care of their parents contained in s 263(1)(b), includes releasing the child into the care of one parent. The release can be with the condition that the children reside at a particular address with that parent, including at an address at which the other parent does not reside. That power may result in the parent into whose care the children are released being forced to live at an address to which they have not consented. But if the Court considers that condition should be included in the best interests of the children, it will be valid. It may be that most such conditions which stipulate an address will be imposed with the consent of the parent concerned,[9] but even without that consent the power exists.
[9]Warfe (a pseudonym) v Secretary, Department of Families, Fairness and Housing [2021] VSC 482.
The difference in language between ‘release’ in s 263(1)(a) and (b), in the case of a parent and ‘placement’ in the case of s 263(1)(c) to(g) reflects that the paragraphs of s 263(1) providing for a placement of a child include placement with a number of services or providers and not in very instance with specific people. The word ‘release’ may well have been regarded as inapt to apply to a condition of an IAO dealing with services or providers.
Secretary’s submissions
In submissions, the Secretary emphasised five points. First, the impact of family violence on children; (2) the risk assessments; (3) that disputes about the evidence did not have to be determined and that the risks to the children remained significant; (4) that the mother’s consent was not necessary for the addition of the Secretary’s condition to the IAO and (5) that the order the Secretary sought was still required despite the mother not being in the family home.
The Secretary pointed to the best interests principle that recognizes:
(e) the effects of the cumulative patterns of harm on a child’s safety and development.
Respondents’ submissions
The mother did not consent to the order sought by the Secretary. There is no indication as to whether or when she may choose to return to the family home. The proposed order would remove both children from the care of their father. The evidence did not establish that either child has been exposed to an unacceptable risk of harm.
The mother submitted that the IAO made by the Children’s Court struck the appropriate balance. It was made by an experienced magistrate sitting in a specialist jurisdiction. She had demonstrated before, during and after the current Protection Application that, when necessary, she takes steps to protect the children from any significant risks associated with the father’s behaviour. She has consistently cooperated with the Child Protection workers and other support services.
The Secretary’s case did not properly consider the disruption and distress that would be caused by the Secretary’s condition to the children and their mother, as primary carer, by being restrained from residing in the family home, being removed from their local area and daily activities, being restricted in their interactions with their father, especially in the case of the son, and by the impact on the mother of being the sole carer of two very young children, including one requiring significant medical treatment and multiple medical appointments. The Secretary’s proposed condition would disempower the mother and interfere with her autonomy. To the extent that there is a risk of harm to the children, the conditions in place and the willing protective actions of the mother are sufficient to make any such risk of harm acceptable. Not every suggestion of family violence is serious family violence and the risk of actual harm has to be assessed. The father had previously respected the mother’s wishes when she left their home with the children.
The father submitted that consideration of the best interests of the child should not occur in isolation, but in conjunction with other best interest principles, including:[10]
the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society and to ensure that intervention into that relationship is limited to that necessary to secure the safety and wellbeing of the child;
the need to strengthen, preserve and promote positive relationships between the child and the child’s parents, family members and persons significant to the child.
[10]Section 10(3)(a) and (b). The father also relied on the principles in s 10(d), (f),(g), (j), (k), (l), (m) and (n).
The child is only to be removed from the care of his or her parent if he or she faces an unacceptable risk of harm.[11]
[11]Section 10(3)(g).
The Secretary has not established that there is an unacceptable risk of harm to the children, nor that the proposed conditions are in their best interests. The imposition of the conditions would be injurious to the best interests of the children and was disproportionate to any possible risk.
The Secretary’s descriptions of the mother’s allegations of rape were overstated and those allegations had resulted from a misunderstanding of information that she had provided Child Protection. There was no evidence of escalating violence and no evidence of direct harm to the children. The highest the evidence went was that the father was alleged to have thrown a boiled egg at the mother’s hand while she was pregnant. The risks associated with the family living under one roof has to date been managed by the imposition of interim conditions. The evidence did not establish that the children were at an unacceptable risk of harm due to their exposure to their parents’ conflict. No such harm was likely before 5 June when the matter is scheduled to return to the Children’s Court. Any intervention and intrusion into the family unit should be limited to that necessary to secure the immediate safety and wellbeing of the children.
The mother’s absence from the family home with the children showed that she was staying away by her own volition. It may be that the mother is staying away against her wishes for fear of having the children removed from her and placed into out of home care. The mother had stated that she has no safety concerns if her community found out about her leaving the father again.
The father suspected that the mother is not likely to return to the family home in the immediate future. However, he wants to be in contact with her, subject to her wishes, and with their children, including to support his wife and assist in the duties of parenting their children, one of whom is undergoing arduous treatment for a serious illness. There is no evidence that the father’s knowledge of the mother and child’s whereabouts places them at an unacceptable risk of harm.
Analysis
At this point I will deal with Charter issues raised by the father.
Charter of Human Rights and Responsibilities
The father submitted that the Secretary in proposing the condition had not had proper regard to the human rights protected by the Charter, particularly the right in s 17(2) of the child without discrimination to such protection as is in their best interests and is needed by them by reason of being a child. He also relied on s 12 – the right to freedom of movement, contending that that right was clearly engaged in circumstances where a person is directed or ordered where to live. He also relied on s 13(a) – the right not to have a person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with and s 19(1) – cultural rights. The father’s reliance on the latter right was not detailed in submissions and I do not consider that it assists the father’s case. The father contended that the rights on which he relied must be protected when an IAO is made.[12]
[12]Secretary to the Department of Human Services v Sanding (2011) 36 VR 221, [157].
The father submitted that the only Charter-compatible interpretation of the CYF Act would result in the Secretary’s condition not being imposed. Section 32(1) of the Charter provides that so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. Section 32 cannot be deployed to override the breadth of the matters in s 10 of the CYF Act in favour of a selective interpretation of the best interests of the children as the Secretary’s contentions would produce. Section 10(3) reflects Parliament’s intention to impose a principle of limited interference in the relationship between children and parents.[13] 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), the child should only be removed from the care of their parents, if there is an unacceptable risk of harm to the child. The imposition of the condition sought by the Secretary would not only interfere with the rights of the family, but also with the best interests of the child.
[13]Ibid [20].
In interpreting s 10 and s 263(7) of the CYF Act compatibly with the Charter rights relied on, the Court should not impose the conditions sought and dismiss the appeal.
The Secretary submitted that in applying the Charter, where a choice must be made between interpretations of a statutory provision that are compatible with human rights, s 32(1) of the Charter directs the choice of the interpretation of the statutory provision that is consistent with the provision’s purpose. In addition, as the Court was exercising the power to make an IAO, s 7(2) of the Charter dealing with the limitation of human rights was not directly applicable.[14]
[14]Slaveski v Smith (2012) 34 VR 206, [45] and Nigro v Secretary to the Department of Justice (2013) 41 VR 359, [85].
I apply the approach of Osborn JA in ZD v Department of the Department of Justice,[15] when dealing with the imposition of conditions on an IAO:
[15]ZD v Department of the Department of Justice [2017] VSC 806, [103]-[111] and [113].
A number of principles governing the operation of s 32(1) have emerged from the authorities. First, s 32(1) neither requires nor authorises a departure from the standard techniques of statutory construction. These techniques require fidelity to the words of the relevant provision.
Secondly, where a provision interpreted in accordance with ordinary techniques is capable of only one meaning, s 32(1) of the Charter will have no work to do. Section 32(1) has been found to operate similarly to the principle of legality, in that it is relevant only when a constructional choice is open to a court and not when the language of the relevant provision is clear and unequivocal.
Thirdly, where a provision interpreted in accordance with ordinary techniques is capable of more than one meaning, s 32(1) requires the meaning that best accords with Charter rights to be adopted.
For the reasons given above, I have determined that s 263(7) of the CYFA is not capable of more than one interpretation. It follows that s 32(1) of the Charter, and that the Charter rights identified as potentially relevant, do not assist in the construction to s 263(7) of the CYFA and cannot be used as a basis for preferring some alternative construction than that already identified.
It is therefore not strictly necessary to say anything further concerning the Charter. However, since detailed submissions were directed to the Charter, particularly by the Attorney-General who intervened for that purpose, I make the following brief observations.
The bulk of the parties’ submissions on the Charter were directed to the rights in s 17. Section 17(2), which is aimed at the protection of children in their best interests, is given effect by the CYFA, under which the best interests of the child are paramount. As discussed above, s 10 of the CYFA requires a number of factors to be taken into account in making decisions or taking action pursuant to that Act in order to give effect to the best interests of the child. For the reasons given above, the construction of s 263(7) that I prefer does give effect to those best interests, through consideration of the factors in s 10 of the CYFA, and is therefore compatible with s 17(2) of the Charter.
In addition, the considerations set out in s 10 of the CYFA include those that expressly attempt to protect the family unit and so give effect to the right in s 17(1) of the Charter. For example, ss 10(3)(a)–(b) of the CYFA, set out above, recognise the need to protect families as the fundamental group unit of society and the need to strengthen, preserve and promote positive family relationships. It cannot be said that a construction of s 263(7) of the CYFA that has properly taken the factors in s 10 into account is inconsistent with the rights in s 17 of the Charter.
Even if s 17(1) is read as encompassing a specific right of parents to make some decisions for their children with respect to medical treatment, which it is not necessary for me to decide, that right would not extend to the right to make decisions in a way that interfered with the best interests of the children as protected under s 17(2). In other words, limiting such a right would be justified in order to give effect to the right in s 17(2).
Section 13(a) of the Charter is of no further assistance. A condition properly imposed under s 263(7), made by taking into account the considerations required under s 10 of the CYFA, would be neither unlawful nor arbitrary and therefore not in contravention of the right in s 13(a), even if it were to interfere with privacy or family.
…
In my opinion, the construction of s 263(7) of the CYFA identified above is not incompatible with the Charter rights raised by the parties and, if anything, the Charter, and s 17 in particular, further support that construction.
The reasoning in ZD is directly applicable in this case to the rights contained in s 17(2) and s 13 of the Charter. In addition to that reasoning, I add that a condition properly imposed under s 263(7) releasing the children into the care of the mother on condition that they reside at an address not know to the father, would not unlawfully restrict their rights of freedom of movement.
I consider that the Court’s power to make an IAO with the Secretary’s condition does not infringe any applicable Charter rights because it involves an exercise of discretion as to what is required in the best interests of the children. The discretion is given under a statute which carefully balances the applicable human rights by reference to the best interests of the children.
Should the Appeal be allowed?
I will now consider whether the appeal should be allowed and the IAO sought by the Secretary made.
The material supporting the Secretary’s case presented to this Court was substantially greater than that before the Magistrate on 5 May when the Protection Application was decided. It included the significant evidence of the mother’s move into safe accommodation on 19 May, her expressed intention not to return to the family home and the detailed account of events obtained by Child Protection on 22 and 23 May. This included evidence of the father abusing and threatening the mother in the presence of the children in the days after the Court proceedings on 5 May. Unlike the last occasion when the mother returned home after one day, her actions now suggest that she has no intention to return and live with the father, at least in the immediate future.
The evidence of the father’s actions since 5 May, establishes a significant risk of verbal, psychological and physical violence to the mother and psychological harm to the children.
The parties all accepted the risks to children from family violence, physical or verbal, between their parents. The Royal Commission into Family Violence documented these risks. It stated that:[16]
[16]Royal Commission into Family Violence: Report and Recommendations (Report, March 2016), vol 2, 105 and 109 (citations omitted).
Family violence can have profound short and long-term effects on children and young people that may or not be immediately apparent: ‘[i]mpacts on children who live with family violence may be acute and chronic, immediate and accumulative, direct and indirect, seen and unseen.
…
Cumulative harm
Children can suffer cumulative harm when subjected to ‘a series or pattern of harmful events and experiences that may be historical, or ongoing, with the strong possibility of the risk factors being multiple, interrelated and coexisting over critical developmental periods’. Among these experiences can be parental substance abuse, disrupted living arrangements and neglect, as well as family violence.
The effects of cumulative harm on children can be ‘profound and exponential, covering multiple dimensions of [their] life’. This is recognised in the Children, Youth and Families Act, which requires that practitioners working with vulnerable children consider the ‘effects of cumulative patterns of harm on a child’s safety and development’. The Commission was told, however, that cumulative harm is not always fully understood by family violence workers and other practitioners who come into contact with children experiencing such violence. There are a number of different risk assessment frameworks and decision–making tools, that are poorly connected, and this contributes to confusion among practitioners. These systemic problems lead to some practitioners treating violence and abuse as discrete events, and failing to recognise the cumulative harm of such violence, and the trauma to children that can occur as a result.
In an affidavit filed in the Secretary’s case, Ms R Greenberg, Team Manager in Children Protection, stated:[17]
Further outlined in the Royal Commission Report is the increasing recognition that children exposed to family violence are not passive ‘witnesses’ and that they suffer lasting effects even if they are not the direct object of the violence or do not directly witness it. Exposure can begin from birth, or even in utero, and can have immediate and long-term psychological and behavioural impacts and health and socio-economic effects. The child’s ability to trust and relate to others can be adversely affected, which in turn can affect future relationships.
The trauma of family violence can have damaging and lasting neurological consequences, affecting the infant and young child’s developing brain.
[17]Affidavit of Rachel Greenberg dated 15 May 2023, [41]-[42].
The principal issue on this appeal is whether include in the IAO a condition that the Court should release the children to the mother on the basis that she will live at an address undisclosed by her to the father. Such a condition would last for the term of the IAO. The Secretary accepted that if the Court added such an additional condition, it could also add other relevant conditions it considered appropriate in the best interests of the children. The parties did not challenge the other conditions of the IAO made by the Children’s Court and I will continue them in substance in the order I make.
In my opinion, the Secretary has established for the purposes of the application for an interim accommodation order that the children may suffer significant emotional or psychological harm if they continue to live in the family home with their parents. Unfortunately, on the material presently before me, the family home appears to be a place where the possibility of family harmony and security is frequently marred by the father’s abuse and threats to the mother. While the children are exposed to violent and abusive conduct, they may well suffer the cumulative harm that can follow.
I accept that the Secretary’s proposed condition removes the mother’s decision making power on the issue of her accommodation, adversely affects the father’s role and significantly interferes with the maintenance of the family unit. I also accept that the IAO will take away parental responsibilities from the mother and father. I have considered the effect of the condition on the father and the children’s loss of the father figure in their life. The order will disrupt their lives. But the Court’s obligation is to have regard to the best interests of the children and I consider that there is an unacceptable risk of significant emotional and psychological harm to them from their father’s conduct if they are living with their mother and father at the one address. It is in their best interests that, on an interim basis, they live with their mother at an address unknown to the father. The fact that the mother does not consent to the order and opposes it, is significant, and makes the IAO unusual, but it not decisive. The order will not direct where the mother, as an adult, should live, but rather where the mother, while she has the care of the children, should live, in their best interests.
The Court must balance the importance of the mother’s autonomy in decision making with the risks to the children. While the mother has shown she can make independent decisions, any person in a stressful situation can be affected by matters that lead them to make decisions that are not in their or their children’s best interests. The father may directly or indirectly try to persuade the mother to return to the family home as she has in the past. While the mother has made her own decision to leave the family home, I consider that she should not have to review that decision for the duration of the IAO, especially if she is pressured to do so. In reaching that conclusion, I have taken into account that each time the mother has left the home and then returned, the father’s conduct towards her has not permanently improved. A Court order that she and the children live apart from the father, with the possibility of the continuation of such a condition, after the initial IAO expires, may indicate to the father the seriousness of the situation.
I do not consider that the father should be informed of the address at which the children are residing, as that will disclose the mother’s address and is not in the best interests of the children in case attempts are made to persuade the mother to take them back to the family home. I will make a direction order under s 265 to that effect.
It was suggested that the mother may breach the IAO if the father learns of her new address, but I consider that that is unlikely to be the case unless the mother intentionally gives him that information.
The IAO should not last indefinitely, it is an interim measure. I consider that it should last for 3 months and then expire. The need for any new IAO can then be considered by the Children’s Court, which should decide that question afresh. The possibility of the family reuniting under the one roof should not be abandoned. It is in the best interests of the children if a family relationship, that is not abusive or violent, can be established. Whether that is possible depends largely on whether the father is prepared to follow the conditions that the Magistrate ordered on 5 May and which I will largely repeat in the order I will make. One of those conditions is that the father undergo an assessment by a forensic psychologist. It was said that there were difficulties in implementing this condition. However, arrangements may be able to be made to enable the father to undergo such an assessment without the need for him to disclose anything that may prejudice him.
It was also contended that the quality of the accommodation and services that would be provided to the mother and children were vague. I consider that the mother must have liberty to apply to the Children’s Court if appropriate services and living standards are not arranged by the Secretary.
In my opinion, during the duration of the IAO, the father should have the possibility of contact with the children as proposed in the conditions contained in the Notice of Appeal. The father should be informed of any significant developments in his son’s medical condition.
Conclusion
The appeal is allowed, the order of the Children’s Court is set aside and a new IAO is made with the duration of three months.
The IAO will have two additional conditions to those contained in the Children’s Court Order: that the mother and children must reside at a safe undisclosed address known to the Department but which the mother does not disclose to the father and a condition that the mother must inform the father through Child Protection of any significant change in the son’s medical condition upon being informed of any such change. I will also give a direction under s 265 that the details of the whereabouts of the children not be disclosed to the father while the IAO is in operation.
Schedule of Parties
| BETWEEN: | |
| SECRETARY TO THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING | Appellant |
| AND | |
| AM (a pseudonym) | First Respondent |
| BQ (a pseudonym) | Second Respondent |
| CY (a pseudonym) | Third Respondent |
| DZ (a pseudonym) | Fourth Respondent |
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