Warfe (a pseudonym) v Secretary to DFFH - [2021] VSC 482

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

S ECI 2021 02507

Between:
MAKAYLA WARFE (a pseudonym)	Appellant
-and-
SECRETARY, DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING	First Respondent
-and-
TYSON BAILE (a pseudonym)	Second Respondent

JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING & ORDERS:	19 & 20 July 2021
DATE OF PUBLICATION OF REASONS:	13 August 2021
CASE MAY BE CITED AS:	Warfe (a pseudonym) v Secretary to DFFH
MEDIUM NEUTRAL CITATION:	[2021] VSC 482	First revision: 16 August 2021

APPEAL — Children’s Court — Appeal, by mother of infant child, against interim accommodation order (“IAO”) placing child in care of mother’s relative but allowing mother to live with same relative and participate in child’s care — Mother urged an IAO with child in her care, but while living with same relative, and with other conditions — Secretary to DFFH submitted existing IAO should be maintained — Whether existing IAO inconsistent with best interests of child, including maintenance of fundamental parent-child relationship, and removal of child from parental care only if there is an unacceptable risk of harm to child — Whether mother’s (poor) history with previous children and negative aspects of assessment in recent parenting course (which also contained positive opinions of mother) justified existing IAO — Appeal allowed — Fresh IAO imposed, with child placed in mother’s care, but while living with relative, and with other conditions — Children, Youth and Families Act 2005 (Vic), ss 10, 162, 241, 243, 262, 263, 271 & 534.

APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms A Kourkoulis	Orenstein Lawyers
For the First Respondent	Ms S Clancy	Legal Services Branch Department of Families, Fairness and Housing
For the Second Respondent	No appearance	N.A.

HIS HONOUR:

PART 1: OVERVIEW

This is an appeal, pursuant to s 271 of the Children Youth and Families Act 2005 (Vic) (“the CYF Act”), by the mother of a two-month-old child, against an interim accommodation order (“IAO”) made by the Children’s Court on 15 July 2021. The IAO had the effect of placing the child out of his mother’s care, and into the temporary care of a relative, albeit that the mother was to live with that same relative and participate in the child’s care while subject to numerous other conditions.

The mother argues, among other things, that the order is inconsistent with the best interests of the child, which must be paramount. In considering the best interests of the child, submits the mother, the Children’s Court must have failed to have any or sufficient regard to the matters set out in paragraphs (a), (b) and (g) of s 10(3) of the CYF Act, namely:

(a) 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;

(b) the need to strengthen, preserve and promote positive relationships…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSC 482
Decision Date: 13 August 2021

CaseChat Overview and Summary

In this case, the appellant, referred to as Warfe, was the mother of an infant child. She appealed an interim accommodation order made by the Children’s Court, which placed her child in the care of a relative while allowing her to live with the same relative and participate in the child’s care. Warfe sought a revised interim accommodation order that would place her child in her care, while continuing to live with the relative, and with additional conditions. The Secretary to the Department of Families, Fairness and Housing (DFFH) argued that the existing order should be maintained.

The central legal issue before the court was whether the existing interim accommodation order was inconsistent with the best interests of the child, particularly in relation to maintaining the fundamental parent-child relationship, and whether the removal of the child from parental care was justified only if there was an unacceptable risk of harm to the child. The court had to consider Warfe’s history with previous children and the mixed outcomes of her recent parenting course assessment, which included both positive and negative feedback. The court also needed to determine whether these factors warranted the continuation of the existing interim accommodation order.

The court found that the existing interim accommodation order was inconsistent with the best interests of the child, as it did not adequately prioritise the fundamental parent-child relationship. The court acknowledged the mixed outcomes of Warfe's parenting course but determined that they did not conclusively justify the continuation of the existing order. The court concluded that Warfe’s care, with the conditions imposed, would better serve the child's best interests. Consequently, the appeal was allowed, and a fresh interim accommodation order was imposed, placing the child in Warfe’s care, while continuing to live with the relative, and with additional conditions.

The final orders included provisions for supervised contact between Warfe and her child, participation in a further parenting course, and regular assessments of Warfe's progress in improving her parenting skills. The court emphasised the importance of the parent-child relationship and the need for ongoing support and supervision to ensure the child's safety and well-being.

Orders