SM v County Court of Victoria
[2017] VSC 604
•5 October 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 03734
| SM | Plaintiff |
| v | |
| COUNTY COURT OF VICTORIA | First Defendant |
| SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES | Second Defendant |
| DM | Third Defendant |
| RM | Fourth Defendant |
NOTE: This proceeding is subject to restrictions on publication pursuant to s 534 of the Children, Youth and Families Act 2005.
---
JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 September 2017 |
DATE OF JUDGMENT: | 5 October 2017 |
CASE MAY BE CITED AS: | SM v County Court of Victoria |
MEDIUM NEUTRAL CITATION: | [2017] VSC 604 |
---
JUDICIAL REVIEW — County Court jurisdictional ruling on appeal from Children’s Court care by Secretary order made by Children’s Court — Whether County Court made a judicially reviewable error — Nature of appeal — Setting aside of Children’s Court order when appellant had ceased to be a child — Whether County Court could make a care by Secretary order in determining appeal — Children, Youth and Families Act 2005 ss 3, 289, 328, 426.
APPEALS — Children’s Court care by Secretary order — Appeal to County Court — Powers of County Court in determining appeal — Children, Youth and Families Act 2005 ss 328, 426.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J R Sutton | Orenstein Lawyers |
| For the Second Defendant | Mr S K McGregor | Department of Health and Human Services |
HIS HONOUR:
At the conclusion of argument on 21 September 2017, as the proceeding had some urgency, I announced my decision and stated reasons for it. I said that I would revise and expand on those reasons. I now set out those revised and expanded reasons.
The plaintiff seeks declaratory relief and other judicial review remedies in respect of a ruling by Her Honour Judge Chambers in the County Court made on 21 August 2017 in hearing an appeal from a care by Secretary order made by the Children’s Court. Her Honour’s ruling is described in the plaintiff’s originating motion as that the first defendant, being the County Court, has jurisdiction under the Children, Youth and Families Act 2005 (‘the Act’) to make a care by Secretary order notwithstanding that the plaintiff was now over 17 years of age. Her Honour directed that the Department file and serve a disposition report on the plaintiff and to the court and adjourned the appeal part heard to 31 August 2017.
The plaintiff contends that the ruling involved errors of law on the face of the record and jurisdictional error.
The plaintiff also relies on an unreasonableness ground contending that it would be an unreasonable and impermissible exercise of statutory power to impose a protective order on the plaintiff.
The plaintiff was born in 1999 and is subject to a care by Secretary order which ends at midnight on the eve of her 18th birthday. That order was made by the Children’s Court the day before she turned 17. The plaintiff turns 18 this month.
The plaintiff appealed that order to the County Court on 2 November 2016 when she was 17 years of age. The appeal right is given by s 328 of the Act and the determination of the appeal is governed by s 426. The appeal eventually came before Her Honour Judge Chambers after a procedural history which is unnecessary to recount.
Before Her Honour, the plaintiff argued that the County Court could no longer make a care by Secretary order because the plaintiff was at that time 17 years of age. The effect of Her Honour's ruling is that the Court had power to make such an order by virtue of the powers contained in s 426.
Her Honour decided that the protection orders of the Children’s Court continued in operation until the appeal had been heard and determined. Secondly, Her Honour decided that the County Court on hearing the appeal had jurisdiction to make a care by Secretary order once the order of the Children’s Court was set aside, at whatever point in the appeal that occurred, although the plaintiff had turned 17.
The legislation
Her Honour’s judgment contains a convenient summary of the applicable legislative provisions in the following terms:
7.The purposes of the Act are set out at s.1. Amongst other things, the purpose of the Act is to provide for the protection of children and for the Children's Court of Victoria to continue as a specialist court in dealing with matters relating to children.
8.A child is defined by s.3 of the Act, relevantly, to mean:
“child means-
…
(b) in any other case, a person who is under the age of 17 years or, if a protection order, a child protection order within the meaning of Schedule 1 or an interim order within the meaning of that Schedule continues in force in respect of him or her, a person who is under the age of 18 years”.
9.If the Children's Court finds that a child is in need of protection pursuant to s274 of the Act (see also s162), then the court may make a protection order pursuant to s.275, including a CBSO.
10.The making of a CBSO is governed by two provisions of the Act. Section 289(1) of the Act provides that a CBSO confers parental responsibility for the child on the Secretary and subject to Division 7, remains in force for a period of 2 years. Relevantly, s289(1)(c) provides that a CBSO ceases to be in force when the child attains the age of 18 years or marries, whichever happens first. By an amendment introduced by the Children Legislation Amendment Act 2016, new section 275(3) was inserted into the Act, which provides that a CBSO (or a long-term care order) “may be made in relation to a child who is under the age of 18 years but ceases to be in force when the child attains the age of 18 years or marries, whichever happens first”.
11.The right to appeal from the Children's Court to the County Court is governed by the interaction of two provisions of the Act.
12.Firstly, s328 of the Act allows a person to appeal to the County Court from a protection order made in the Family Division of the Children's Court, including a child who is the subject of the order. Section 328(6)(b) of the Act provides that the determination of the appeal by the appellate court is governed by s426(1), (2), (4) and (5) of the Act, which “apply, with any necessary modifications, to an appeal under this section” (and as if a reference to a sentence in s426 were a reference to an order and a reference to the Criminal Division were a reference to the Family Division).
13.In its terms, s328 incorporates the provisions that apply to a determination of an app6 under s.426(1), (2), (4) and (5) of the Act, including s.426(2) which provides as follows:
“426 Determination of appeal
(2) On the hearing of an appeal under s.424, the appellate court –
(a) must set aside the sentence (order) of the Children’s Court; and
(b) subject to this section may impose any sentence (order) which the appellate court considers appropriate and which the Children’s Court imposed or could have imposed; and
(c)may exercise any power which the Children’s Court exercised or could have exercised.”
14.Further, s.426(4) of the Act allows an appellate court to backdate a sentence (order) to a date no earlier than the date of the order of the Children's Court that was set aside on the appeal.
15.Finally, s328(8) provides that an appeal under this provision (that is, appeals applicable to protection orders made in the Family Division) “does not operate as a stay of any order made by the Court unless the Court so orders with respect to the whole or any part of the order”. The stay provision is not replicated in s426 of the Act and applies only to appeals from protection orders made in the Family Division of the Children's Court.
Plaintiff’s submissions
The plaintiff submitted that the applicable definition of a child was that contained in s 3 of the Act which provides that for relevant purposes a child means a person who is under 17 years of age. The effect of Her Honour’s decision was that the County Court could make orders with respect to persons who were over the age of 17 years of age on the date of an appeal in circumstances where, were it not for the appeal, there would be no power to do so. The County Court, standing in the shoes of the Children’s Court, had no power to make orders that the Children’s Court, as of the date of the appeal, lacked power to make.
On hearing the appeal, before making any new order, the County Court was obliged by statute to set aside the Children’s Court order. Once it was set aside, the Court could not make a protective order in respect of the plaintiff because she was over the age of 17 years. Applicable decisions of the Supreme Court[1] supported this proposition as they established that on appeal to the County Court, the Children’s Court orders are set aside or deemed to be set aside when the hearing of the appeal commences.[2]
[1]Helfenbaum v Sattler & Anor [1999] 3 VR 583 (Beach J) (“Helfenbaum”) and Saric v Elliott [2013] VSC 509.
[2]Helfenbaum 587, [23].
Section 426(2)(b) of the Act provided that any order made by the appellate court must be not only appropriate but also one that the Children’s Court imposed or could have imposed. The powers of the County Court on appeal were governed by the application of the law at the date of the appeal to the facts at that date. Thus to the extent that was necessary, s 426(2)(b) and (c) ought be read as implying the words: ‘on the facts as they now present themselves’.
Second defendant’s submissions
The second defendant, the Department of Health and Human Services, submitted that the County Court had jurisdiction to remake the existing care by Secretary order if, on the evidence before it, that was the appropriate order to make.
The Department pointed to the decision of Beach J in Marr v Judge G Lewis[3], in particular the consideration of the phrase ‘made or could have made’ in s 86 of the Magistrates’ Court Act 1989 in the following passage:
As an exercise in statutory interpretation the verb “made” in subs 1(b) of s86 relates to the decision made by the Children’s Court at the time it sentenced the appellant. There is no temporal distinction drawn between the verb “made” and the composite verb “could have made” - they both relate to the same point in time.
If the legislature had intended to draw a temporal distinction between the two verbs the phrase would have read “made” or “could make”. In short the subsection is concerned with the past. The section is clearly intended to place the County Court or Supreme Court Judge in the shoes of the Children's Court Magistrate who initially heard the matter, as at the date which he heard it. Here also to give the words the meaning contended for, which is not the literal meaning, would result in an absurdity. Because of the passing of time between the initial hearing and the date of the appeal the appellate Court would be deprived of jurisdiction to impose a custodial sentence which was available to the presiding Children's Court Magistrate, in this case some 11 weeks earlier.
In my view such an interpretation could lead to the nonsense of an offender who attracts the definition of "child" in s3 of the Children and Young Persons Act committing offences before but close to his or her eighteenth birthday secure in the knowledge that he or she can escape a custodial sentence by judicious use of the appeal process. It would be equally nonsensical that the offender should lose his right of appeal which would be another possible consequence of accepting the argument advanced on behalf of the appellant.[4]
[3]Marr v Judge G Lewis & Anor (unreported, Supreme Court of Victoria, Justice Beach, 15 March 1994).
[4]Marr v Judge G Lewis & Anor (unreported, Supreme Court of Victoria, Justice Beach, 15 March 1994) 3.
The Department’s interpretation of the appeal provisions from Children’s Court orders avoided the County Court’s appellate powers being lost by the mere fact that the plaintiff had pursued an appeal. The Department submitted that the plaintiff could not demonstrate that she had suffered a miscarriage of justice as the Children’s Court order was made after a contested hearing.
The Department submitted that the appropriate pathway for the plaintiff to challenge the County Court’s ruling was by appeal to the Trial Division of the Supreme Court on a question of law rather than by seeking judicial review.
Consideration of submissions
In my opinion, the plaintiff’s grounds for seeking judicial review do not establish that the judge made any error of law on the face of the record or any jurisdictional error.
The plaintiff was exercising a right of appeal and that is the critical consideration. The appeal to the County Court against the Children’s Court order was an appeal de novo. But, as has been said, ultimately, the true character of an appeal must depend on the interpretation of the particular legislation, jurisdiction, powers, composition and functions of the tribunal or court from whose decision the appeal lies and the nature of the rights and liabilities of the persons affected by the tribunal or court decision.[5]
[5]Traut v Faustmann Bros Pty Ltd (1983) 48 ALR 313 at 322 (Lockhart J).
This proceeding turns on the meaning of s 426(2) and for ease of reference, I will again set out its terms:
(2) On the hearing of an appeal under section 424, the appellate court—
(a) must set aside the sentence of the Children's Court; and
(b) subject to this section, may impose any sentence which the appellate court considers appropriate and which the Children's Court imposed or could have imposed; and
(c) may exercise any power which the Children's Court exercised or could have exercised.
Section 426 contains the powers of the County Court to determine an appeal from a care by Secretary order. However, there are difficulties in applying the text of s 426(2) to an appeal from a care by Secretary order because it is directed at ‘sentences’, and it must be applied with ‘necessary modifications’: s 328(6).
The legislative intention was to create an appeal in the ordinary sense and enable the County Court to make any order that the Children’s Court could have made on the day that it made the order which is the subject of the appeal. The protection of children is an important purpose of the Act and is to be taken into account in the interpretation of its provisions including the appeal provisions.
In my opinion, the plaintiff's contention would make the appeal process envisaged by s 426(2) of no force or effect. That is because on the plaintiff's contention, as soon as the order of the Children's Court was set aside, as must occur under s 426, the County Court could make no further substantive order including no care by Secretary order. That interpretation would defeat the legislative intention to confer a right of appeal against such orders.
The ordinary meaning of an appeal to a court is a process by which a person affected adversely by a decision, order or other determination of a lower court or of a tribunal seeks to have that determination reversed, varied or set aside in favour of the person.[6] In the case of an appeal de novo, a rehearing occurs in which new evidence can be led and new arguments made and a second hearing of the dispute occurs.[7]
[6]See the cases referred to in LexisNexis Butterworths, Civil Procedure: Victoria, vol 1 (at service 287) [64.01.10]
[7]Allesche v Manz (2000) 203 CLR 172 at 180 [23] (Gaudron, McHugh, Gummow and Hayne JJ) and M J Beazley, P T Vout and S E Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (LexisNexis Butterworths 2014), 97.
It is true that the present issue only arises in respect of persons who are 17 years of age or over at the time of exercising a right of appeal against care by Secretary orders, but there is no indication that Parliament intended to confer on those young people different appeal rights from those given to children of other ages. The Act permits care by Secretary orders to continue until a young person turns 18.
There is another reason that supports the judge’s construction of the appeal provisions. The words of s 426(2), particularly the words, ‘exercised’, or, ‘could have exercised’, are sufficient to confer jurisdiction on the County Court to determine the appeal by making orders that the Children’s Court could have made on the day that it determined the matter. I refer to the judgment of Beach J in Marr’s case in that regard.
The decision in Mr and MrsX v Secretary to the Department of Human Services[8] to which some attention was devoted does not require a different conclusion as it does not contain a finding that the Children’s Court order there under consideration was set aside as soon as the hearing of the appeal commenced. In any event, I consider that the judge’s interpretation of the powers conferred by s 426(2) was correct at whatever point in the County Court appeal process the Children’s Court order is taken to have been set aside.
[8][2003] VSC 140.
As I have said, the care by Secretary order made in respect of the plaintiff continued until she turned 18. The Act gave her a right of appeal against that order although she had turned 17. On the other hand, the County Court in determining her appeal was given the powers that the Children's Court had on the day that the order was made.
Of course, the age of the plaintiff when her appeal to the County Court was determined and the factor that she was no longer a child within the statutory definition might well be relevant to the County Court’s determination of whether it should make a care by Secretary order. Such an order could not be made if the child had turned 18 years of age.
I mention two other matters. The plaintiff relied on a ground of unreasonableness or lack of reasonableness, but in discussion with counsel for the plaintiff I explained why I considered that that could not succeed. The County Court did not make a protective order, but only ruled on jurisdiction. It did not exercise any statutory discretion that might be challenged on grounds of unreasonableness.
Secondly, I consider that the plaintiff was entitled to bring this proceeding seeking judicial review as the right of appeal conferred by the Act on questions of law was probably not available as the County Court did not make a final judgment or order.
As I consider that Her Honour Judge Chambers correctly interpreted the appeal sections of the Act, the proceeding is dismissed.
0
5
0