Weiren v The Secretary to the Department of Families Fairness & Housing
[2023] VSC 553
•14 September 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 03386
| WEIREN (a pseudonym) | First appellant |
| BROOKS (a pseudonym) | Second Appellant |
| v | |
| The Secretary to the Department of Families Fairness & Housing and others (according to the attached schedule) | Respondents |
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JUDGE: | Gray J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 August 2023 |
DATE OF JUDGMENT: | 14 September 2023 |
CASE MAY BE CITED AS: | Weiren v The Secretary to the Department of Families Fairness & Housing |
MEDIUM NEUTRAL CITATION: | [2023] VSC 553 (First revision: 19 September 2023) |
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APPEAL – Children’s Court of Victoria – Interim accommodation order – Nature of appeal – Evaluation of risks of harm and consideration of other relevant circumstances having regard to best interests of the children – Decision-making principles – Wishes of children – Children, Youth and Families Act 2005, ss 10, 11, 271, 524(10), 525.
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APPEARANCES: | Counsel | Solicitors |
| For the First Appellant | Appeared in person | |
| For the Second Appellant | No appearance | |
| For the First Respondent | Ms J Davidson | Department of Families, Fairness and Housing |
| For the Second Respondent | Mr J Orenstein, a solicitor | Orenstein Lawyers |
| For the Third Respondent | Ms M Jenkins | Dale & Younis Legal Pty Ltd |
HIS HONOUR:
Introduction
This is an appeal under s 271 of the Children, Youth and Families Act 2005 (‘the Act’) from interim accommodation orders made by the Children’s Court of Victoria in respect of the appellants’ four children.[1] The interim accommodation orders released the children to the care of the children’s mother, who must reside at her mother’s home, and placed substantial limitations on their father’s contact with them.
[1]Commenced by the appellants’ notice of appeal filed on 4 July 2023, on the grounds set out in the appellants’ amended notice of appeal filed pursuant to leave on 9 August 2023, as further amended by leave granted during the hearing on 15 August 2023 (‘Amended Notice of Appeal’).
The interim accommodation orders arose out of proceedings in the Family Division of the Children’s Court, commenced in November 2022, in which the Secretary (‘the Secretary’) of the Department of Families, Fairness and Housing (‘the Department’) sought protection orders in respect of the children. The Secretary was empowered to make these applications if satisfied that there were reasonable grounds that each child was ‘in need of protection’.[2] The Secretary claimed that the children were in need for protection from their father. The applications for protection orders have not yet been heard. Those proceedings in the Children’s Court are listed for a readiness hearing on 21 September 2023.
[2]Act s 240(1).
The grounds of appeal can be grouped into three themes: first, that the children are not in need of protection on the grounds of past significant harm or likely future significant harm as alleged by the Secretary; second, that it is the Department’s interventions that are harmful to the children; and third, that the Secretary and Children’s court have breached certain provisions of the Act.
The Act requires me to consider whether a different interim accommodation order should have been made, and if so, to set aside the order appealed from and make any other order that I think should have been made.[3] The material before the Court indicates that the children may be exposed to the risk of sexual abuse by a relative who has previously visited their place of residence under the interim accommodation orders. I have decided that the interim accommodation orders should not have been made without additional conditions for their protection. I will set them aside, and in their place, I will make interim accommodation orders subject to additional conditions preventing any further visits by that relative.
[3]Act s 271(2)(a).
The new interim accommodation orders will be in effect for three months or until further order, whichever is earlier. This will ensure that they are reviewed in the near future and any new circumstances can be taken into account.
Members of the family
The appeal was conducted by the children’s father, Mr Weiren (‘the Father’).
The children’s mother, Ms Brooks (‘the Mother’), did not actively participate in the hearings. The Mother was initially represented by a legal practitioner who informed the Court that the Mother wished to discontinue her appeal, but those instructions were withdrawn and the legal practitioner sought and obtained leave to be excused at the commencement of the first hearing, which was a directions hearing on 8 August 2023.
All four children are the biological children of Ms Brooks and Mr Weiren. There are three daughters and a son. Child One is a daughter aged 16 years, Child Two is a daughter aged ten years, Child Three is a son aged three years, and Child Four is a daughter aged one year.
Child One and Child Two were separately represented by legal practitioners. Their instructions and wishes were conveyed by their legal representatives, consistently with the requirements that apply to proceedings relating to interim accommodation orders in the Family Division of the Children’s Court.[4] Counsel for Child Two submitted that Child Two’s instructions or wishes should be sought in general rather than specific terms due to her relative immaturity.[5]
[4]Act ss 525(1)(a), (g).
[5]Act s 524(10).
There were several other members of the extended families of Mr Weiren and Ms Brooks mentioned in evidence, such as Ms Brooks’ mother (‘the Maternal Grandmother’), the Maternal Grandmother’s brother-in-law (‘the Maternal Great Uncle’), Mr Weiren’s father (‘the Paternal Grandfather’), sister (‘the Paternal Aunt’) and family more generally (‘the Paternal Family’). No members of the extended families were present at the hearings or represented in this proceeding.
The interim accommodation orders
There are four interim accommodation orders in force, one in respect of each child. The most recent interim accommodation order in respect of Child One, dated 17 July 2023, released her to the care of the Mother. The Father may have contact with Child One at least once per week. The Court was told that any contact between the Father and Child One is only to occur if Child One wishes it to occur and that, in practice, that means Child One would have to express that wish to the Department.
The interim accommodation orders in respect of the other three children were initially made on 25 November 2022, and have been extended and varied on various occasions since then, including on 20 June 2023. The interim accommodation order in respect of Child Two released her into the care of the Mother, on condition that the Mother must live with the Maternal Grandmother unless assessed otherwise by the Department, and on condition that the Father may have contact at least twice per week subject to Child Two’s wishes, with the Department or its nominee to supervise contact unless supervision is assessed as unnecessary by the Department.
Under the interim accommodation orders in respect of Child Three and Child Four, they were released into the care of the Mother, the Mother must live with the Maternal Grandmother unless assessed otherwise by the Department, the Father must not live or have contact with the children other than court ordered contact, and the Father may have contact at least twice per week, with the Department or its nominee to supervise contact unless supervision is assessed as unnecessary by the Department.
Because Child Two, Child Three and Child Four are in the Mother’s care, and the Mother is required to live at the Maternal Grandmother’s home, in effect the orders in respect of those children require them to live there too. Further, even though the order in respect of Child One does not expressly require the Mother to live at the Maternal Grandmother’s home, the combined effect of the requirement that Child One is released into the care of the Mother and of the orders relating to the other children, is that Child One must live at the Maternal Grandmother’s home too.
The appeal
Where the Children’s Court has made an interim accommodation order in respect of a child, a parent may appeal to this Court.[6] An appeal must be heard forthwith or otherwise at such time and in such manner as a Judge of this Court directs.[7]
[6]Act s 271(1)(b).
[7]Supreme Court (General Civil Procedure Rules) 2015 (‘Rules’) r 58.20(2).
The appeal was first listed before me as the Judge sitting in the Practice Court on 8 August 2023. There was inadequate information before the Court for the appeal to be heard on that date, and so I conducted a directions hearing. The Secretary sought directions enabling her to place relevant material before the Court and relating to joinder and separate legal representation of Child One and Child Two. I granted leave for the filing of an amended notice of appeal[8] and made directions for the filing of affidavit material and submissions, and I adjourned the matter for a hearing on 15 August 2023.
[8]See Rules r 58.18(3).
The appeal raises eight grounds, set out in an Amended Notice of Appeal filed on 9 August 2023.[9]
[9]As further amended by a minor addition suggested by the Secretary, for which I granted leave in court on 15 August 2023 without requiring the appellants to file another document. I granted leave for the description of the decision under appeal on the first page of the Amended Notice of Appeal to be further amended to read ‘decision of the Children’s Court of Victoria made on 25/11/2022, 20th and 23rd June, 17th July 2023’.
The material before the Court at the time of the hearing on 15 August 2023 was:
(a) An affidavit of Mr Weiren, affirmed 26 July 2023, setting out submissions in respect of the grounds of the appeal and exhibiting various Children’s Court orders relevant to the appeal.
(b) An affidavit of a senior officer of the Department, affirmed 10 August 2023, and exhibits.[10] The exhibits include the Father’s Victoria Police criminal history report, a series of summary information forms and reports submitted by the Department to the Children’s Court, six sets of orders made by the Children’s Court in respect of the children, and a report of a conciliation conference. These documents are dated in the period 24 November 2022 to 17 July 2023.
(c) A further affidavit of Mr Weiren, affirmed 10 August 2023, again setting out submissions in respect of the grounds of the appeal, and including exhibits. The body of the affidavit also sets out photos of the children taken at various times and accompanied by various narrative descriptions. The exhibits include a copy of the Victorian ‘Public Sector Values’, a letter from the Mother dated 10 January 2023 to the Children’s Court seeking removal of the interim accommodation orders, an information exchange document for a conciliation conference at the Children’s Court dated 20 April 2023, a set of four applications to the Children’s Court to vary interim accommodation orders dated 6 December 2022, various documents criticising the child protection system in Victoria, some documents relating to s 49O of the Crimes Act 1958, entitled ‘Failure by a person in authority to protect a child from a sexual offence’, protection applications in respect of the children dated 24 November 2022, minutes of Children’s Court orders on 25 November 2022, and further orders dated 17 July 2023.
(d) A further affidavit of the senior officer of the Department, affirmed 14 August 2022, and its exhibits. The affidavit referred to some of the exhibits to Mr Weiren’s affidavit dated 10 August 2023, stating that they had not been filed in the Children’s Court. The exhibits to the senior officer’s further affidavit are applications to the Children’s Court for protection orders dated 24 November 2022 and for variation of interim accommodation orders dated 19 June 2023.
[10]An amended version of this affidavit was filed on 15 August 2023, including new pages 149–149A setting out an order of the Children’s Court in respect of Child Three dated 20 June 2023.
At the hearing on 15 August 2023, Mr Weiren made submissions about two matters that were not specified in the particulars to the grounds of the Amended Notice of Appeal. First, he submitted that the Maternal Great Uncle posed a risk to the children as he had previously sexually abused Child One. Second, he disputed the suitability of the Maternal Grandmother as a host for the children, including by submitting that her home is not an appropriate place for them to reside. I treated those matters as part of the appeal.[11]
[11]Both matters fall broadly within Grounds 1, 3, 5 and 7 of the Amended Notice of Appeal.
On 16 August 2023, by email from my chambers, I directed the Secretary to file and serve additional material relating to the matters raised about the Maternal Great Uncle and the Maternal Grandmother’s suitability, and a brief submission framing a condition protecting the children from the Maternal Great Uncle, and listed the matter for further hearing on 21 August 2023. In accordance with the directions, on 18 August 2023, the Secretary filed and served a further affidavit of the senior officer including exhibits and a brief submission.
At the hearing on 21 August 2023, Mr Weiren made oral submissions in reply and tendered additional evidence, comprising a bundle of photos of the Maternal Grandmother’s home he said were taken in the period of December 2022 to January 2023, which I received into evidence as exhibit ‘A1’.
Applicable law
Emergency care and protection applications
Section 240 of the Act enables the Secretary (as a protective intervener) to commence a protection application by notice or by placing a child in emergency care pursuant to s 241 of the Act, if the Secretary is satisfied on reasonable grounds that a child is in need of protection. As Counsel for the Secretary explained during the hearing, the placing of a child in emergency care does not necessarily involve separating the child from both parents. Also, it might involve placing the child with an extended family member.
Section 162 sets out when a child is ‘in need of protection’. One ground on which a child can be ‘in need of protection’ is that the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type.[12] Another is that the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child’s emotional or intellectual development is, or is likely to be, significantly damaged and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type.[13]
[12]Act s 162(1)(c).
[13]Act s 162(1)(e).
The harm may be constituted by a single act, omission or circumstance, or accumulate through a series of acts, omissions or circumstances.[14] The Children’s Court may find that a future state of affairs is likely even if the Court is not satisfied that the future state of affairs is more likely than not to happen.[15]
[14]Act s 162(2).
[15]Act s 162(3)(a).
Interim accommodation orders
Part 4.8 div 5 of the Act is entitled ‘Interim accommodation orders’. It includes s 262, which provides that the Children’s Court may make an interim accommodation order in respect of a child if, amongst other things, ‘the child has been placed in emergency care by a protective intervener …’ or ‘a protection application is filed …’.[16]
[16]Act ss 262(1)(a), (b).
Protection orders are provided for in pt 4.9 of the Act.[17] They include a ‘family preservation order’, and others such as a ‘family unification order’ and a ‘care by Secretary order’.[18] A family preservation order gives the Secretary responsibility for supervision of the child, but does not affect a person’s parental responsibility for the child, and provides for the child to be placed in the day-to-day care of one or both of the child’s parents.[19] In contrast, orders such as family reunification orders or a care by Secretary orders would confer parental responsibility on the Secretary.[20]
[17]Act ss 274, 275.
[18]Act ss 275(1)(b), (c), (d).
[19]Act s 280(1).
[20]Act ss 287(1), 289(1).
An interim accommodation order may provide for a number of accommodation options, including relevantly to this case: ‘the release of the child into the care of his or her parent pending the hearing, or the resumption of the hearing’,[21] or ‘the placement of the child with a suitable person or suitable persons pending that hearing, or the resumption of the hearing, and following a report (whether oral or written) from the Secretary on that person’s or those persons’ suitability’.[22] Section 263(7) enables the Children’s Court to include conditions in an interim accommodation order. Section 263(7) provides:
(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.
[21]Act s 263(1)(b).
[22]Act s 263(1)(c).
Interim accommodation orders may be extended or varied by order of the Children’s Court.[23] An application for a new interim accommodation order may be made in certain circumstances, such as where new facts or circumstances have arisen.[24]
[23]Act s 267 (‘Extension of interim accommodation order’) and s 268 (‘Application for variation of interim accommodation order’).
[24]Act s 270.
There is no provision in pt 4.8 div 5 setting out criteria to be applied by the Children’s Court in deciding whether to make an interim accommodation order. Certain provisions impose threshold requirements before an interim accommodation order placing a child in accommodation away from their parents can be made, but there are no such limitations imposed before an interim accommodation order may be made that releases a child to the care of one of its parents.
In Purcell v RM, Gillard J identified the main purpose of an interim accommodation under the predecessor legislation, the Children and Young Persons Act 1989.[25] Gillard J said:[26]
The main purpose of an interim accommodation order in a case such as the present, is to provide for the placement of the child in a safe environment pending the hearing of a protection application. It is an interim measure designed to ensure that the child is not exposed to any physical or mental danger. It is made in circumstances where a considered decision has been arrived at that the child is in need of protection. It is made usually on untested material and sometimes as a matter of urgency. The paramount consideration must be the welfare of the child.
[25]Purcell v RM [2004] VSC 14 (‘Purcell’).
[26]Purcell, [25].
In Purcell v RM, the Children’s Court had made an interim accommodation order leaving the children in the care of their mother, and a senior officer of the Department appealed, seeking an interim accommodation order placing the children with suitable persons or a community service. [27] Unlike the present case, the Court was therefore considering whether children should be removed to accommodation away from their family. In that context, Gillard J considered whether such an order can only be made where there is an unacceptable risk of harm to the child.[28] Gillard J concluded that while risk of harm is relevant, it is not a question of saying that the order can only be made if there is an unacceptable risk of harm to the child — all the circumstances must be considered, and an order must be made if it is in the interest of the child, with the form of order giving effect to those interests.[29]
[27]Purcell, [17]–[18].
[28]Purcell, [31]–[32].
[29]Ibid.
As this Court recently reaffirmed in Secretary to the Department of Families, Fairness and Housing v AM (a pseudonym),[30] the power is a broad one and is governed by the best interests of the child. It can extend to placing the child in the care of a parent on the condition that they reside separately from the other parent, even if that is against their wishes. As Ginnane J stated at [53]:
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, but even without that consent the power exists.
[30][2023] VSC 291 (‘AM’).
The requirement to have regard to the best interests of the child is expressed in ch 1, pt 1.2 of the Act, which is entitled ‘Principles’. In pt 1.2, s 8 is entitled ‘Decision makers to have regard to principles’. It requires the Children’s Court and the Secretary to ‘have regard to the principles set out in this Part (where relevant) in making any decision or taking any action under this Act’, and also requires the Secretary to do so ‘in providing any service under this Act to children and families’.[31]
[31]Act s 8(2).
Section 10, in pt 1.2, is entitled ‘Best interests principles’. Many of its provisions are relevant to grounds raised in this appeal. Section 10 relevantly provides:
(1) For the purposes of this Act the best interests of the child must always be paramount.
(2) When determining whether a decision or action is in the best interests of the child, the need to protect the child from harm, to protect his or her rights and to promote his or her development (taking into account his or her age and stage of development) must always be considered.
(3) In addition to subsections (1) and (2), in determining what decision to make or action to take in the best interests of the child, consideration must be given to the following, where they are relevant to the decision or action—
(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 between the child and the child’s parent, family members and persons significant to the child;
…
(d) the child’s views and wishes, if they can be reasonably ascertained, and they should be given such weight as is appropriate in the circumstances;
(e) the effects of cumulative patterns of harm on a child’s safety and development;
(f) the desirability of continuity and permanency in the child’s care;
(fa) the desirability of making decisions as expeditiously as possible and the possible harmful effect of delay in making a decision or taking an action;
(g) 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;
(h) if the child is to be removed from the care of his or her parent, that consideration is to be given first to the child being placed with an appropriate family member or other appropriate person significant to the child, before any other placement option is considered;
(i) the desirability, when a child is removed from the care of his or her parent, to plan the reunification of the child with his or her parent;
…
(k) contact arrangements between the child and the child’s parents, siblings, family members and other persons significant to the child;
(l) the child’s social, individual and cultural identity and religious faith (if any) and the child’s age, maturity, sex and sexual identity;
(m) where a child with a particular cultural identity is placed in out of home care with a care giver who is not a member of that cultural community, the desirability of the child retaining a connection with their culture;
(n) the desirability of the child being supported to gain access to appropriate educational services, health services and accommodation and to participate in appropriate social opportunities;
(o) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance;
(q) the desirability of siblings being placed together when they are placed in out of home care;
(r) any other relevant consideration.
In the recent decision of Mia Harris (a pseudonym) and Adam Jackson (a pseudonym), O’Meara J considered the principles set out in s 10 of the Act, noting that:[32]
[32]Mia Harris (a pseudonym) and Adam Jackson (a pseudonym) v Secretary to the Department of Families Fairness and Housing [2023] VSC 228, [116].
(a) the consideration in s 10(1) – the best interests of the child – must always be considered and is expressly ‘paramount’;
(b) the considerations in s 10(2) – including the need to protect the child from harm – must also ‘always’ be considered;
(c) the considerations in s 10(3) are expressly stated to be ‘in addition’ to those stated in ss 10(1) and (2), and must be considered ‘where they are relevant to the decision’;
(d) in any particular case, a degree of balancing may be required between the various stated considerations, including among those stated in s 10(3) – for example, it is not difficult to conceive of circumstances in which the need to ‘strengthen, preserve and promote positive relationships’ between the child and the child’s parent (s 10(3)(b)) may need to be balanced against the protection of the child from the effects of cumulative patterns of harm (s 10(3)(e)); and
(e) indeed, in s 10(3)(a) the occasion for balance is evident within the stated terms of the one provision: on the one hand, there is a stated ‘need to give the widest possible protection’ to the unit of the parent and child and, on the other, intervention into that relationship may well be ‘necessary to secure the safety and wellbeing of the child’.
Section 11, entitled ‘Decision-making principles’ sets out a number of additional principles. It is necessary to refer to one of them, which was relied upon by the appellants:
In making a decision or taking an action in relation to a child, the Secretary or a community service must also give consideration to the following principles—
…
(d) the views of all persons who are directly involved in the decision should be taken into account;
Appeals from interim accommodation orders – general principles
Section 271 of the Act provides for appeals to the Supreme Court from interim accommodation orders made by the Children’s Court. It provides that:
(1) If the Court makes an interim accommodation order in respect of a child or dismisses an application for an interim accommodation order in respect of a child, then—
(a) the child; or
(b) a parent of the child; or
(c) a protective intervener—
may appeal to the Supreme Court against the order or the dismissal.
(2) On an appeal under this section against an interim accommodation order, the Supreme Court must—
(a) if it thinks that a different interim accommodation order should have been made—
(i) set aside the order of the Children’s Court; and
(ii) make any other order that it thinks ought to have been made; or
(b) in any other case, dismiss the appeal.
Section 3(1) of Act provides that in the Act an ‘interim accommodation order’ means an order under s 262. In Sani (a pseudonym) v Secretary of the Department of Families, Fairness and Housing,[33] Moore J observed that the right of appeal in s 271 ‘against an interim accommodation order’, consistent with the terms in which ‘interim accommodation order’ is defined, is to be construed strictly to mean an order under s 262 of the Act.
[33][2021] VSC 366, [25] (‘Sani’).
After referring me to Sani, Counsel for the Secretary pointed out in her submissions that s 262 refers to circumstances in which the Children’s Court may make an interim accommodation order, and that these include where an application for extension of an interim accommodation order under s 267 has been made, but do not include where an application for variation of an interim accommodation order has been made under s 268. For this reason, Counsel for the Secretary suggested, the subject matter of the appeals in respect of Children Two, Three and Four might not include the varied conditions ordered by the Children’s Court since the interim accommodation orders for those children were made on 25 November 2022.
In my view, even if it were to be accepted that a variation of an interim accommodation order might not in itself be sufficient to trigger a right of appeal, this would not preclude the Court from having regard to relevant variations in the course of an appeal from the underlying interim accommodation order. In my view, in determining an appeal under s 271 of the Act, the Court should have regard to the currently operative form of the relevant interim accommodation order. This follows as a matter of necessary implication from the paramountcy of the best interests of the child, as well as the general principle that the legislature intends decisions to be made on the most recent and probative available material.[34]
[34]See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 44.
Part 4 of the Supreme Court (General Civil Procedure) Rules 2015 includes provisions relating to appeals under s 271 of the Act. [35] However, there is no specific rule addressing the manner in which the appeal is to proceed. In these circumstances, as a matter of implication, the appeal is to be governed by the same rules as to evidence and standard of proof as applied to the making of the interim accommodation orders in the Family Division of the Children’s Court. In this regard, I note that s 215(1)(d) of the Act allows the Family Division to ‘inform itself on a matter in such matter as it thinks fit, despite any rules of evidence to the contrary’. Section 215A of the Act provides that the standard of proof ‘of any fact’ in an application under the Act in the Family Division of the Children’s Court is ‘the balance of probabilities’. However, as explained in the next paragraph below, there is an established line of authority that an application for an interim accommodation order may be determined without making findings of fact, and that it is likewise unnecessary, and may be inappropriate, to do so on appeal.
[35]See Rules rr 58.17–58.21.
In 2014, the principles applicable to an appeal under s 271 of the Act were distilled by Macaulay J in a passage that has since often been cited with approval by other Judges of this Court:[36]
[36]Secretary to the Department of Human Services v Children’s Court of Victoria [2014] VSC 609, [23]–[24], citing Purcell, [25], [28], [31], [32]; The Secretary, Department of Human Services v Merigan [2006] VSC 129, [14], [30]; Department of Human Services v DR [2013] VSC 579, [61]. Followed in Warfe (a pseudonym) v Secretary to the Department of Families, Fairness and Housing [2021] VSC 482, [66]; Sani, [11]; GG v Secretary to the Department of Health and Human Services and Ors [2020] VSC 740, [17]; Edwards (a pseudonym) v Department of Health and Human Services and Anor [2018] VSC 716, [4]; Secretary to the Department of Health & Human Services v Children’s Court of Victoria [2018] VSC 183; 58 VR 490, [15].
·an appeal under s 271 (like its predecessor) is in the nature of a re-hearing on the material before the magistrate and on any other relevant material placed before the court hearing the appeal;
·for an appeal to succeed, it is not necessary for the Supreme Court to identify any error in the decision made by the magistrate — that is, a view may be taken that the decision of the magistrate was open, but nonetheless the Supreme Court thinks a different order should have been made;
·although the view of an experienced Children’s Court magistrate should be afforded respect, and weight given to it, nevertheless it is ultimately the appellate court’s responsibility to form its view on all the relevant facts and circumstances;
·although a child is only to be removed from the care of a parent if there is an unacceptable risk of harm, the existence of an unacceptable risk of harm is not the only matter to be considered — all the circumstances relevant to the paramount interests of the child must be considered;
·when considering, on an appeal concerning an interim accommodation order, whether there is an unacceptable risk of harm, it is neither necessary nor usually appropriate for a court to attempt to make findings of fact about events of past alleged harm; and
·analogously to hearings for interlocutory injunctions, the court is to weigh the evidence concerning the conduct in question, consider the likelihood of it occurring in the future, consider the nature and extent of the risk of harm to the child associated with the conduct were it to occur or re-occur, and consider whether that risk is unacceptable having regard to the paramount interests of the child.
In the recent decision of AM (a pseudonym), Ginnane J identified the importance of considering the risk of cumulative harm in deciding whether an appeal of an interim accommodation should be allowed. His Honour referred in this regard to observations of the Royal Commission into Family Violence about the profound and exponential effects of cumulative harm on children and the dangers of treating violence and abuse as discrete events.[37]
[37]AM, [74]–[80].
Ginnane J also noted that interim accommodation orders should, as interim measures, not last indefinitely. In AM, Ginnane J determined a maximum period of three months, at which point the need for any new such order could be considered by the Children’s Court, which would decide the question afresh. [38]
[38]AM, [85].
For many years, applications for interim accommodation orders in the Family Division of the Children’s Court have been conducted and determined by a procedure, well adapted for urgent applications for interim relief, known in that court as a ‘submissions contest’. Gillard J in Purcell described the procedure as one ‘whereby the application is determined on assertions and submissions made by the parties present at the hearing’, with the general rule ‘that sworn evidence is not placed before the court’.[39] The adoption of this procedure has occasionally been said to involve the principle that both at first instance and on appeal the courts should accept the Secretary’s case ‘at its highest’, subject to certain qualifications. Zammit J (as her Honour Incerti J then was) in Secretary to the Department of Health & Human Services v Children’s Court of Victoria considered this principle, referring with approval to the remarks of Magistrate Power in Re AS, including the following:[40]
[I]t isn’t really a question of automatically and blindly taking the Department’s case at its highest. It has to be subjected to some scrutiny but where we’ve got factual assertions, and where you’ve got the Department making a factual assertion which if true would put the child at risk of harm, and where you’ve got a parent denying the basis of that factual assessment, in those circumstances it seems to me that s 10(2) does require the Court to act on the basis of the Department’s factual allegations unless they are allegations which ought on their face be given very little weight.
I think that you’re right at one level in saying that the rule of thumb is that in submissions contest the Department’s case has to be taken at its highest but it really does need to be explained that the Court is not obliged to give weight to something which the Court considers to be not deserving of weight.
…
The Court must – as part of its decision-making process – analyse what weight is to be given to allegations and counter-allegations. However, ‘in the absence of sworn evidence it is not possible for the Court to disregard factual allegations made by the Department which appear on their face to be rational.
…
So in this situation where the welfare of a child is at stake, a rational assertion by the Department about a fact raising issues of child protection must be accepted by the Court.[41]
[39]Purcell v RM [2004] VSC 14, [19]. See also Secretary to the Department of Human Services v Sanding [2011] VSC 42, [1], and recent judgments of this Court in MMM v Secretary to the Department of Families, Fairness and Housing [2023] VSC 354, [11] and AM, [5].
[40]Secretary to the Department of Health & Human Services v Children’s Court of Victoria [2018] VSC 183, [16]–[17], quoting from Re AS (Unreported, Children’s Court of Victoria, Magistrate Power, 5 June 2012) (‘Re AS’), [14], [15], [21], [23]. Since followed in Secretary to the Department of Health & Human Services v Children’s Court of Victoria [2020] VSC 527, [18] and Sani, [12]–[14].
[41]Re AS, [21]–[23].
As can be seen from the above remarks, there are significant qualifications on the principle that the Secretary’s case should be ‘taken at its highest’. Recently, Gorton J doubted the usefulness of this expression, explaining:[42]
I do not accept that I am required to ‘prefer’ the Department’s evidence or to take it at its highest. I am required to assess it on its merits. But I do accept that an interim accommodation order may (and usually will) be made on the basis of a risk, not knowledge, that harm will eventuate, and there is no obligation on the Department to establish that harm will eventuate if the order is not made. In deciding whether there is an ‘unacceptable risk of harm’, the Court is required to assess, in broad terms, the likelihood of the harm being suffered in the future, together with the nature and extent of the potential damage to the child if the harm were to eventuate.
[42]MMM v Secretary to the Department of Families, Fairness and Housing [2023] VSC 354, [17].
I do not think there is any substantive difference between the two approaches, provided the substantial qualifications identified by Incerti J are taken into account. I think it best, however, to avoid the notion of ‘taking the Secretary’s evidence at its highest’ in determining the appeal.
Summary of information relied on by the Secretary
The Mother and the Father met in high school. The Mother was 16 years old and the Father was 17 years old when Child One was born in 2007. Child Two was born in 2013, Child Three was born in 2019 and Child Four was born in late 2021.
Between 2015 and 2022, there were multiple reports to the Department in relation to concerns including:
(a) Incidents of family violence perpetrated by the Father against the Mother, in view of some or all of the children, in November 2015, in the period June to October 2016, in September 2018; in November 2018; in May 2019; in October 2019; in December 2020; and in the period May 2022 to August 2022;
(b) The Father’s criminal history, including unlawful assault, intentionally causing injury and making threats to kill in 2010, failure to obey lawful direction of police and hinderance of emergency workers in 2018 and fraudulent use of documents and obtaining financial advantage by deception in 2021;
(c) A family violence incident perpetrated by the Father against Child One in mid to late 2016. A safety notice was served on the Father by police around this time;
(d) A family violence incident perpetrated by the Father and Paternal Grandfather against Child One in late 2020. A safety notice was served on the Father by police around this time;
(e) The Father’s psycho-social and parenting capacity, noted in 2019; and
(f) Child One’s disclosure in August 2021 of repeated sexual abuse by the Maternal Great Uncle that occurred in 2016.[43]
[43]Act ss 8(1), (2).
This proceeding arises in the context of an initial report made to the Department on 1 November 2022. This report raised concerns for the safety and wellbeing of the children. The Father had attended a police station in an attempt to stop the Mother from leaving the family home. The Mother was trying to leave the home with the children following an argument with the Father. Police had concerns for the welfare of the Mother and the children, and After Hours Child Protection completed a follow‑up visit.
On 2 November 2022, and again on 3 November 2022, it was reported to the Department that the Mother had left the home with the children and not returned. The Mother was contacted and confirmed she had been residing elsewhere and was seeking alternative accommodation for herself and the children. The Mother disclosed that the Father could be controlling and engaged in coercive behaviours, but did not advise of any recent instances of family violence.
On 5 November 2022, the Mother contacted the Department seeking advice. The Mother explained that the Father was requesting that she return home with the children, but that Child One and Child Two did not want to live with the Father. The Father also spoke with the Department and expressed his belief that the Mother was incapable of caring for the children, but did not identify any specific concerning behaviours.
On 7 November 2022, the Department was informed that the Mother had returned to the home with the Father, and with Child Two, Child Three and Child Four. Child One chose to remain with her Maternal Grandmother. It was reported that the Mother had provided a video recording of the Father driving her to the police station. It was reported that the Father was forcing the Mother to make a report against the Maternal Grandmother. It was reported to the Department that the Father was coercing the Mother in respect of her statement to the police, in order to apply for an intervention order against the Maternal Grandmother. It was also reported that the Father had been making indirect threats to the Mother such as ‘you know what I’m capable of’.
On 9 November 2022, the Mother was interviewed by the Department, and disclosed that a government funded family violence support service recommended that she leave the home with the children due to family violence. The Mother confirmed that although the physical violence perpetrated by the Father had decreased, the emotional abuse had increased.
On 16 November 2022, Child One was interviewed by the Department. Child One disclosed instances of verbal abuse perpetrated by the Father against the Mother and Child One. Child One recalled an incident that occurred sometime in 2012 where the Father ‘threw’ the Mother against a garage door. Child One recalled an incident that occurred sometime in 2021 where Child Three was crying during the night and the Father became frustrated and ‘kicked’ Child Three. Child One also disclosed that the Father was financially controlling and limited the Mother’s access to money for living expenses. During this interview, Child One confirmed that she did not want to live or have contact with the Father at that time.
On 16 November 2022, Child Two was interviewed by the Department. Child Two recounted a historical incident of violence perpetrated by the Father against her, but denied any recent incidents of physical violence. Child Two disclosed that the Father became angry every month and that it made her feel ‘scared and shocked’.
On 24 November 2022, the Department was informed that Child Two had attended school in distress following an incident with the Father. Child Two disclosed that the Father had sworn and yelled at her after she had refused to go to school. Child Two disclosed that she was feeling scared and nervous, and that she would prefer to stay elsewhere rather than with the Father.
Child Protection phoned the Mother and informed her that Child Two was fearful of returning home with the Father. The Mother advised the Department that she had moved to a different room to speak with them. The Department discussed the Mother and the children residing elsewhere. The Father interrupted this phone call and became ‘heightened’ when speaking with the Department staff. The Mother was not observed to respond. The Father agreed to attend the Department office for an interview.
On 24 November 2022, the Father was interviewed by the Department. The Father denied any historical or current concerns of family violence and/or physical abuse towards the Mother, and denied any threats to kill. The Father advised that he had pleaded guilty to this criminal charge in 2010 on the advice of his lawyer. The Father stated to the Department that ‘the children feel safe’.
On 24 November 2022, the Secretary to the Department placed the children into emergency care, and issued a Protection Application for the children given concerns of significant family violence and coercive control perpetrated by the Father. The grounds upon which the Protection Applications were made are s 162(1)(c) (physical harm) and s 162(1)(e) (emotional or psychological harm) of the Act. The placement of the children in emergency care did not involve the children being placed in external or third party care. The children were placed with the Mother and at the Maternal Grandmother’s home.
On 25 November 2022, the application was heard in the Children’s Court, and proceeded by way of a ‘submissions contest’. The Magistrate of the Children’s Court of Victoria made interim accommodation orders in respect of the four children, requiring that they be released into the care of the Mother. These orders were subject to the following 11 conditions:
1. Mother must accept visits from and cooperate with DFFH.
2. Father must accept visits from and cooperate with DFFH.
3. Mother must accept support services as agreed with DFFH.
4. Father must accept support services as agreed with DFFH.
5. Mother must go to family violence counselling as agreed with DFFH and must allow reports to be given to DFFH.
6. Father must go to a course on anger Men’s Behaviour Change Program as agreed with DFFH and must allow reports to be given to DFFH.
7. Mother must tell DFFH at least 24 hours before changing address.
8. Father must not live or have contact with the child other than court ordered contact.
9. Father must not expose the child to physical or verbal violence.
10. Father must not threaten or assault DFFH staff.
11. Father may have contact with [Child One] and [Child Two] for a minimum of 1 time per week. Contact is subject to the children’s ([Child One] and [Child Two]) wishes. Father my [sic] have contact with [Child Three] and [Child Four] 2 times per week at times and places as agreed between Mother, Father and DFFH. DFFH or its nominee will supervise contact unless DFFH assesses that supervision is not necessary. DFFH agree to assess paternal grandparents and paternal aunt and uncle in the adjournment period as suitable supervisors for the children’s contact.
The matters were adjourned to 11 January 2023 for ‘reserved submissions’. This form of hearing is also a submissions contest, but allows the parties some time to prepare and provides an opportunity to consider the application or address outstanding issues in the case.
On 19 December 2022, a confidential Protection Application Report and a Disposition Report were prepared by a Child Protection Practitioner, in support of the Secretary’s protection application filed in the Children’s Court. The Disposition Report recommended that the Court order that the four children be placed on a family preservation order for a period of 12 months, under pt 4.9 of the Act.
The Disposition Report stated that there was a significant pattern and history of family violence perpetrated by the Father towards the Mother and the children, including physical, verbal, psychological and financial abuse, and coercion and control. It was observed that the Father’s sophisticated level of control and coercion over the Mother appeared to impact her ability to respond to the needs of the children.
The Disposition Report stated that Child One’s wish was to reside away from the Father, and Child Two’s wish was to attempt to reside away from the Father to ‘see how it goes’. Child Three and Child Four are not of an age where they are able to express views and wishes, however the Department noted that it is reasonable to believe that all of the children would wish to live in a home free of family violence, and a home in which they feel safe and secure.
On 9 January 2023, an Update Report was prepared by a Department Team Manager, also in support of the Secretary’s protection application filed in the Children’s Court.
The Update Report noted that the children continued to reside together with the Mother at the Maternal Grandmother’s house. The Department had completed referrals for Child One and Child Two to engage in family violence counselling, and had attempted a referral for the Mother in relation to family violence and intensive family support, however the service was closed over the Christmas and New Year period. The Mother had also self-referred for family violence counselling and psycho-education.
The Update Report noted that the Father had refused to be provided with the details of, or engage with, and Men’s Behaviour Change Program as required under Order 6 of the 25 November 2022 orders.
The Update Report noted that the paternal grandparents had been assessed as possible contact supervisors; however, they were found to be not appropriate given their limited insight into family violence, as well as the Paternal Grandfather’s use of violence. The Paternal Aunt, who resides with the Father, was assessed as an appropriate supervisor.
On 11 January 2023, the Children’s Court heard the applications for interim accommodation orders. This hearing was the subject of a reserved submissions contest, and there was additional information available to the Court at that time, including the three reports (the Protection Application Report, Disposition Report and Update Report) prepared by the Department in the preceding weeks.
On 11 January 2023, a Magistrate made orders in respect of the four children. The Court made a new interim accommodation order for Child One and varied the orders of 25 November 2023 in respect of Child Two, Child Three and Child Four.
The new interim accommodation order in respect of Child One ordered that she be placed with the Maternal Grandmother until further order, and was subject to the following 13 conditions, which provided respite to Child One, gave Child One the right to approach the Court to request a change to the order, and permitted overnight stays between Child One and the Father as a form of supervised contact:
1. Mother must accept visits from and cooperate with DFFH.
2. Father must accept visits from and cooperate with DFFH.
3. Mother must accept support services as agreed with DFFH.
4. Father must accept support services as agreed with DFFH.
5. Mother must go to a family violence counselling as agreed with DFFH and must allow reports to be given to DFFH.
6. Father must go to a course on men’s behaviour change as agreed with DFFH and must allow reports to be given to DFFH.
7. Child may have respite as agreed between DFFH, Mother and child.
8. Father must not live or have contact with child other than Court-ordered contact.
9. Father must not expose the child to physical or verbal violence.
10. Father must not threaten or assault DFFH staff.
11. Child has the right to come to Court and ask the Court to change the order.
12. Mother may have contact with the child daily as agreed between Mother and child, subject to child’s wishes.
13. Father may have contact with Child One for a minimum of once per week, including overnight (subject to child’s wishes) at times and places as agreed between Mother, Father and DFFH. DFFH or its nominee will supervise contact unless DFFH assesses that supervision is not necessary. Paternal Aunt has been assessed as suitable to supervise contact, including overnight contact.
The interim accommodation orders with respect to Child Two, Child Three and Child Four ordered that the children be released into the care of the Mother pending the hearing or resumption of the hearing.
The orders were subject to the following 10 conditions, which allowed the Father to have varied (that is, unlimited) unsupervised contact with the children daily — in effect, to allow the Father to reside with the Mother and Child Two, Child Three and Child Four, at the family home. The apparent purpose of these conditions was to ensure that the children were not exposed to any physical harm, or emotional and psychological harm, and to allow the Department to visit the Mother and Father, and to provide support services to the family.
The conditions were as follows:
1. Mother must accept visits from and cooperate with DFFH.
2. Father must accept visits from and cooperate with DFFH.
3. Mother must accept support services as agreed with DFFH.
4. Father must accept support services as agreed with DFFH.
5. Mother must go to family violence counselling as agreed with DFFH and must allow reports to be given to DFFH.
6. Father must go to a course on anger Men’s Behaviour Change Program as agreed with DFFH and must allow reports to be given to DFFH.
7. Mother must tell DFFH at least 24 hours before changing address.
8. Father must not expose the child to physical or verbal violence.
9. Father must not threaten or assault DFFH staff.
10. Father may have contact with the children daily.
The notations to all orders made by the Magistrate recorded that the Father disputed the contents of the three reports prepared by the Department (the Protection Application Report, Disposition Report and Update Report), as well as the Department’s involvement generally.
The Court also listed the matter for a conciliation conference on 3 March 2023.
On 3 March 2023, another Magistrate of the Children’s Court of Victoria made orders in respect of the four children. The Magistrate made new interim accommodation orders in respect of Child One, and extended the orders of 11 January 2023 (which had extended and varied the orders made 25 November 2022) in respect of Child Two, Child Three and Child Four.
The orders in respect of Child One required that Child One be placed with the Maternal Grandmother pending the hearing listed on 21 April 2023 and following a report from the Secretary on the Maternal Grandmother’s suitability.
The conditions of the interim accommodation order made in respect of Child One were the same conditions made in the orders of 11 January 2023.
The interim accommodation orders with respect to Child Two, Child Three and Child Four ordered that the children be released into the care of the Mother pending the hearing or resumption of the hearing. The orders were subject to the same 10 conditions made in the orders of 11 January 2023.
The Court also listed the matter for a conciliation conference on 21 April 2023.
On 14 April 2023, the Department prepared a Conciliation Conference Addendum Report. The Conciliation Conference Addendum Report was prepared by a Child Protection worker who was also attending the Conciliation Conference. It outlined the key issues and needs identified for the children in the context of the application before the Court.
The Conciliation Conference Addendum Report sought that Child One be placed on a Family Reunification Order for a period of six months, and Child Two, Child Three and Child Four be placed on a Family Preservation Order for a period of 12 months. The Conciliation Conference Addendum Report advised that the Department continued to have concerns in relation to family violence perpetrated by the Father; however, it noted that the Father had recently begun to engage with a Men’s Behaviour Change Program.
On 21 April 2023, another Magistrate of the Children’s Court made orders in respect of the four children. The Magistrate varied the interim accommodation orders made on 3 March 2023 in respect of Child One, and extended the orders of 11 January 2023 and 3 March 2023 (which had extended and varied the orders made 25 November 2022) in respect of Child Two, Child Three and Child Four.
The interim accommodation order in respect of Child One ordered that Child One be placed with Maternal Grandmother pending the hearing listed on 26 June 2023 and following a report from the Secretary on the Maternal Grandmother’s suitability. These orders were subject to the following conditions:
Orders 1-12 made 3 March 2023 are extended; and
Order 13 is varied as follows:
13. Father may have contact with Child One for a minimum of 1 x per week, including overnight (subject to [Child One’s] wishes) at times and places as agreed between Mother, Father and [Child One]. Contact will be unsupervised unless [Child One] requests supervision, in which case DFFH or its nominee will supervise contact unless DFFH assesses that supervision is not necessary. Paternal Aunt has been assessed as suitable to supervise contact, including overnight contact.
Up to this point, the family’s circumstances showed signs of improvement, and it was encouraging that the Father had been engaging with a Men’s Behavioural Change Program.
On 18 June 2023, the Department received a report that a family violence incident had occurred between the Mother and the Father in the home on that date. The report noted that the incident was witnessed by Child Two, Child Three and Child Four.
On 19 June 2023, the Department interviewed Child Two, who disclosed that the Father had yelled at her, and threatened her. Child Two had run to her room, but realised she had left her younger siblings outside, and could hear them crying. When she ran out of her room she witnessed the Father dragging the Mother across the floor. During this interview, Child Two noted that she felt 50% safe with the Mother and 20% safe with the Father.
On 19 June 2023, the Department interviewed the Mother, who confirmed that the Father had dragged her along the ground. The Mother advised the Department that Child Four, a one-year-old infant, may have been knocked over during this incident.
On 19 June 2023, the Department interviewed the Father, who denied any instances of family violence, and said that Child Two was lying.
On 19 June 2023, urgent applications were filed by the Department to vary the interim accommodation orders in respect of Child Two, Child Three and Child Four. The applications were heard by the Children’s Court on 20 June 2023, and proceeded by way of submissions contest. The Court was able to rely on the existing reports on the court file, as well as a Summary Information Form dated 20 June 2023 which detailed the additional report and information obtained by the Department on 18–19 June 2023.
On 20 June 2023, a Magistrate made interim accommodation orders in respect of Child Two, Child Three and Child Four. Although made as a result of an application for variation of the pre-existing orders, the orders are on their face new interim accommodation orders.[44]
[44]On the basis that they are fresh interim accommodation orders, they are the subject matter of the appeal in respect of Child Two, Child Three and Child Four. Alternatively, the varied conditions in them are relevant matters to be taken into account in the course of the appeal from the pre-existing orders. See the discussion of Sani, [25] in paragraphs 38 to 40 of these reasons, above.
The interim accommodation orders required that Child Two, Child Three and Child Four be released into the care of the Mother pending the hearing or resumption of the hearing. These interim accommodation orders were subject to the following conditions, which limited contact between the Father and the children, and required the Mother to reside separately from the Father, with the Maternal Grandmother (where Child One was also required to reside):
(a) Conditions on interim accommodation orders made in respect of Child Two:
1. Mother must accept visits from and cooperate with DFFH.
2. Father must accept visits from and cooperate with DFFH.
3. Mother must accept support services as agreed with DFFH.
4. Father must accept support services as agreed with DFFH.
5. Mother must go to family violence counselling as agreed with DFFH and must allow reports to be given to DFFH.
6. Father must go to a course on anger Men’s Behaviour Change Program as agreed with DFFH and must allow reports to be given to DFFH.
7. Mother must tell DFFH at least 24 hours before changing address.
8. Father must not expose the child to physical or verbal violence.
9. Father must not threaten or assault DFFH staff.
10. Father may have contact with the child for a minimum of twice per week. DFFH or its nominee will supervise contact unless DFFH assesses that supervision is not necessary. Contact is subject to the young person’s wishes.
11. Mother must live with Maternal Grandmother unless assessed otherwise by DFFH.
(b) Conditions on interim accommodation orders made in respect of Child Three and Child Four:
1. Mother must accept visits from and cooperate with DFFH.
2. Father must accept visits from and cooperate with DFFH.
3. Mother must accept support services as agreed with DFFH.
4. Father must accept support services as agreed with DFFH.
5. Mother must go to family violence counselling as agreed with DFFH and must allow reports to be given to DFFH.
6. Father must go to a course on anger Men’s Behaviour Change Program as agreed with DFFH and must allow reports to be given to DFFH.
7. Mother must tell DFFH at least 24 hours before changing address.
8. Father must not live or have contact with the child other than court ordered contact.
8. Father must not expose the child to physical or verbal violence.
10. Father may have contact with the child for a minimum of twice per week at times and places as agreed between Mother, Father and DFFH. DFFH or its nominee will supervise contact unless DFFH assesses that supervision is not necessary.
11. Mother must live with Maternal Grandmother unless assessed otherwise by DFFH.
The proceeding was adjourned to a further hearing on 17 July 2023.
On 23 June 2023, a Magistrate of the Children’s Court made a new interim accommodation order in respect of Child One, requiring that Child One be placed with the Maternal Grandmother pending the hearing listed on 17 July 2023, and recording the Grandmother as a ‘suitable person’.
The conditions to this interim accommodation order in respect of Child One were the same 13 conditions set out in the orders of 26 April 2023.
On 12 July 2023, a further Update Report was prepared by a Child Protection Practitioner with the Department. This report provided a detailed risk assessment highlighting the Department’s assessment that the children would be at further significant risk of harm if they were to be reunified with the Father. The report noted that the Father continues to deny family violence, has no insight into family violence, continues to use coercion and control and is not accountable for his perpetration of family violence.
The further Update Report recorded the Department’s recommendation that the four children be placed together on a Family Preservation Order to the Mother for a period of nine months, with specific conditions including that the Father must not live or have contact with the children other than court-ordered contact.
On 17 July 2023, all four matters returned to the Children’s Court. The material before the Court included the various reports and information already contained in the court file, as well as the further Update Report dated 12 July 2023.
On 17 July 2023, a Magistrate made a new interim accommodation order with respect to Child One. The Secretary’s submissions do not describe the procedure adopted on this occasion, but the submissions on behalf of Child Two identified it as a ‘mention hearing’. I will assume that, as before, the interim accommodation order made by the Children’s Court was not the result of findings of fact on the balance of probabilities, but was at most the product of a ‘submissions contest’. This interim accommodation order, and its conditions, is the subject of this appeal in respect of Child One.[45] The interim accommodation order ordered that Child One be placed with the Mother pending the hearing listed on 21 September 2023. The interim accommodation order is subject to the following 11 conditions:
[45]See the discussion of Sani in paragraphs 38 to 40 above.
1. Mother must accept visits from and cooperate with DFFH.
2. Father must accept visits from and cooperate with DFFH.
3. Mother must accept support services as agreed with DFFH.
4. Father must accept support services as agreed with DFFH.
5. Mother must go to family violence counselling as agreed with DFFH and must allow reports to be given to DFFH.
6. Father must go to a course on anger Men’s Behaviour Change Program as agreed with DFFH and must allow reports to be given to DFFH.
7. The child may have respite as agreed between DFFH, mother and child.
8. Father must not live or have contact with the child other than court ordered contact.
9. Father must not expose the child to physical or verbal violence.
10. Father must not threaten or assault DFFH staff.
11. Father may have contact with Child One for a minimum of 1 x per week, including overnight (subject to the child’s wishes) at times and places as agreed between Mother, Father and DFFH. DFFH or its nominee will supervise contact unless DFFH assesses that supervision is not necessary.
The Magistrate extended the interim accommodation orders, made on 20 June 2023, with respect to Child Two, Child Three and Child Four.
The new interim accommodation order made with respect to Child One orders that Child One reside with the Mother, who, in the conditions to the interim accommodation orders made in respect of the other children, is required to reside with the Maternal Grandmother. While this amalgamates the residence of the four children in the respective orders, it may have unintended effects on the contact arrangements with the Father. For example, Condition 8 of the interim accommodation order in respect of Child One, Child Three and Child Four orders that the Father must not live or have contact with the child other than court ordered contact. However, this condition is not replicated in respect of Child Two.
Submissions by legal representatives of Child One and Child Two
The legal representative for Child One obtained instructions consistent with the requirements of s 524(10) and conveyed Child One’s instructions that she does not wish to reside with the Father and wishes her accommodation arrangements to remain as they are. That is, she wishes to continue to reside with her Mother and siblings at the Maternal Grandmother’s home. He submitted that Child One has ‘considerable maturity’ relative to the other children and is able to provide clear instructions. His written submissions on behalf of Child One dated 14 August 2023 stated that her current instructions as at that date were:
8. She does not wish to reside with her father nor does she wish to have any contact with him;
9. She only agreed to return to the legal custody of her mother on 17 July 2023 on the basis that she would not be residing with her father and wouldn’t be forced to have contact with him;
10. If her mother and younger siblings were to return to reside with her father, she would not wish to return with them and would wish to remain with her grandparents;
11. She is worried about the wellbeing of her mother should she be having contact or reside with the father;
12. She supports the Secretary’s position in relation to the protective concerns for her safety and wellbeing identified in the various reports to Court;
13. She supports the First Respondent’s position in relation to this appeal and, as such, wishes for the current IAO in relation to her and her siblings to remain in place.
The legal representative for Child One submitted that Child One’s wishes ought to be given considerable weight in determining what is in her best interests.[46]
[46]Act s 10(3)(d).
At the resumed hearing on 21 August 2023, Child One’s legal representative informed the Court that a further conference had taken place since the hearing on 15 August 2023, and Child One’s instructions remained the same.
The legal representatives for Child Two also represented their client on the instructions model required by s 524(10) of the Act. They also filed written submissions. These submissions outlined the occasions on which instructions had been obtained from Child Two, beginning with an introductory discussion via Facetime on 2 March 2023 at the family home where Child Two was residing with her Father, Mother and siblings apart from Child One, a conference on 20 April 2023, and a further discussion via Facetime on 7 August 2023, this time ‘from the privacy of her bedroom’. The submissions conveyed instructions, relevantly including the following:
c. Child Two wished to remain living with her mother.
d. Child Two continued to instruct that she wished to spend time with the paternal family in the paternal family home. Child Two suggested that her father could go elsewhere or to a hotel at times when she visited the home.
e. Child Two initially instructed that she did not want visits with her father at the present time, and would reconsider this in a few weeks or the end of the month.
f. Child Two then changed her mind and instructed that she continued to seek regular visits at the paternal family home with her extended paternal family and did not mind if her father was present during the times she visited the paternal family home.
Child Two’s legal representative submitted that, at only 10 years of age, Child Two’s views change from time to time and that her level of maturity was not such that her instructions should be sought in very specific terms.
Issues for determination
The Amended Notice of Appeal states that the interim accommodation orders should be revoked on grounds which can conveniently be grouped as follows:
(a) Claims that the Children face no harm from their Father: Grounds 1, 2 and 5 (in part), disputing the allegation that the children have been harmed as a result of the Father’s (or either parent’s) behaviour.[47] The effect of these grounds is that:
[47]Grounds 1, 2, 5a–c.
(i) ‘the children have not suffered a single act of harm’;[48]
[48]Ground 1, citing Act s 162(2).
(ii) ‘[t]he Secretary has misled the court’ by ticking the ‘significant injury category in the application form for interim accommodation order’;[49] and
[49]Ground 2, citing Act ss 201(a), (b), 291(3)(a) (which is repealed).
(iii) the Children’s Court erred by failing to consider the questions ‘Could the parents of the children not be found?’, ‘Have the children been abandoned…?’, and ‘What significant injury [have] the children suffered?’[50]
[50]Ground 5a–c, citing Act ss 10(p), 11(d), 522(1)(a), (b), (c).
(b) Claims that the children face harm from the Department’s intervention: Grounds 3, 4, 5 (in part) and 7, raising whether and to what extent the Department’s interventions have been (or will be) harmful to the children, and especially Child One.[51] The effect of these grounds is that:
[51]Grounds 3, 4, 5d–h, 6, 7.
(i) the Children’s Court ignored the best interests of the children, the Department’s management of Child One has ‘produced neglect and utterly negative results’, the Secretary and the Children’s Court have ignored her best interests and ‘their action was unjustified and unreasonable’;[52]
[52]Ground 3, citing Act ss 10(3)(b), (p), (q), (r).
(ii) the Children’s Court should have considered the following impacts of an accommodation order: the children ‘have felt fearful to attend school because of the constant disruption from [the Department] attending their school randomly…’, the ‘wellbeing worker at the primary school, who is not a qualified psychologist, has made [Child Two] attend counselling and referred the child to see a protection worker by holding their hand and taking them against [Child Two]’s wishes’;[53]
[53]Ground 4, citing Act ss 10(3)(f), (o), (r), 233(a)–(b), 522(d).
(iii) the Children’s Court should have considered the effect of the accommodation order on the children, which forced them to leave the home in tears, particularly in light of Child Two’s wish to stay in the family home and Child Three and Child Four’s distress at having to leave the home;[54]
[54]Ground 5, citing Act ss 10(p), 11(d), 522(1)(a)–(d).
(iv) the Children’s Court ignored the effects of the delay of the interim accommodation order, including ignoring the impact on the children where the parent’s wishes are that the Department not be involved when the children have not suffered any harm;[55] and
[55]Ground 5, citing Act ss 10(p), 11(d), 522(1)(a)–(d).
(v) the Department’s involvement with Child One caused her to lose weight, skip school and begin to vape, as well as other ‘negative outcomes’.[56]
[56]Ground 7, citing Act ss 10(p), 174(a)–(b), 180, 291, 301(b).
(c) The claim that the children face harm living at the Maternal Grandmother’s home: In addition to the particulars appearing in the grounds of the Amended Notice of Appeal relating to the harm entailed by the Department’s intervention and the interim accommodation orders, Mr Weiren made oral submissions drawing attention to information that Child One had been sexually abused by the Maternal Great Uncle at the Maternal Grandmother’s home, and that the Maternal Grandmother was reported as consuming excessive amounts of alcohol and her home was untidy and dirty. Mr Weiren submitted that the children would be at risk from the Maternal Great Uncle and there was doubt about the suitability of the Maternal Grandmother to provide a home for the children. To the extent it may be necessary, I grant leave for these issues to be agitated in support of the appeal. I am treating them as additional particulars of the above grounds claiming that the Department’s interventions, including the resultant interim accommodation orders, present a risk to harm to the children.
(d) Alleged additional breaches of the Act: A final ground, Ground 8, which raises issues based on s 268 of the Act. This section provides for applications for variations of interim accommodation orders, including where circumstances have materially changed since the making of an order. Ground 8 states that the circumstances relied upon are:
I was not legally represented. I knew it was not reasonable to issue this protection order because the facts were inaccurate, no further investigation was done to issue and was made prematurely.
Analysis and conclusions
A. Claims that the children do not face harm from their Father
As noted in the preceding section of these reasons for judgment, Grounds 1, 2, and 5a–c of the Amended Notice of Appeal advance claims that the children have not been harmed, and do not face the likelihood of any harm, from the actions of their Father. Mr Weiren made oral submissions and drew my attention to aspects of the affidavit material in support of these claims. I turn to these matters now.
Mr Weiren took me to protection application forms in which the Secretary had ticked the box to the effect that the children had suffered or were likely to suffer ‘significant harm as a result of physical injury’. He claimed that this was misleading because the children had not suffered a single act of harm.
As explained by reference to the distillation of principles in paragraph 42 above, on an appeal of this kind it is unnecessary, and may be inappropriate, to make final findings of fact. On an application for an interim accommodation order, the Secretary is not required to prove the allegations and nor is the Court required to make findings about disputed facts. Neither the Children’s Court, nor the Supreme Court on appeal, is required to be satisfied of the proof of facts on the balance of probabilities. Ultimately, these matters may be the subject of a contested hearing in the Children’s Court for the protection orders sought by the Secretary, in which the evidence will be able to be fully tested. At this stage, however, the exercise performed by both courts is one of evaluation of risks raised on the face of rationally probative material, having regard to the best interests of the children.
In this appeal, it would be inappropriate to make findings about whether or not the children have been harmed, because the accounts recorded in the affidavit material of aggressive behaviour and violence by the Father against the Mother or children have not been tested. It is also unnecessary to do so, because the task before me is one of evaluation of risk, as to whether there is a rational and probative basis for thinking that the children would be at risk of harm, and (if so) how accommodation arrangements should best mitigate that risk.
Adopting this approach, I consider that there is considerable information contained in that affidavit material relied upon by the Secretary, as summarised earlier in these reasons, that furnishes a rational and probative foundation for the Secretary’s claims that the children are ‘in need of protection’ on at least one of the grounds the Secretary relies upon — that is, s 162(1)(e). Without making any findings, I consider that the material includes information, that cannot be dismissed as irrational or irrelevant, indicating that the Father has on multiple occasions been verbally aggressive, and at times physically aggressive, toward the Mother in the presence of the children, such as to expose the children to emotional and psychological harm.
There are also claims that on some occasions the Father has been verbally aggressive to Child One and Child Two. There are claims that he may perhaps have kicked Child Three in 2021, and may perhaps have knocked Child Four over in June 2023 while dragging the Mother along the floor. It is not clear to me that there is any report that ‘significant’ harm from a physical injury has ever been caused to one of the children. This provides some support to the appellants’ ground that the Secretary should not have ticked the box for ‘significant harm resulting from physical injury’ on the protection application forms. In light of the lack of clarity that there is any claim that the Father has caused significant harm from a physical injury to any of the children, the Secretary’s reliance on s 162(1)(c) in support of her protection applications may ultimately prove to be displaced. However, s 162(1)(c) is not confined to circumstances in which significant injury has occurred in the past. Even if there has not been a significant injury in the past, the Secretary still has a basis to claim that it is ‘likely’ that a significant injury might be caused in the future. In this context, the Children’s Court may make a finding that significant injury is ‘likely’ even if it is not more likely than not on the balance of probabilities.[57]
[57]Act s 162(3)(a).
Howsoever that may be, there are allegations against the Father that do provide a rational and probative basis for thinking that the children would be exposed to the risk of emotional and psychological harm, meeting the description in s 162(1)(e) of the Act, if the Father were to reside with them at present, because of the risk that he would repeat some of the more distressing aspects of his past behaviour.
The Amended Notice of Appeal refers to the absence of any evidence that Mr Wieren or Ms Brooks have neglected the children. During his oral submissions, Mr Weiren informed the Court that he and his wife loved the children, and have always been there for them. He said that:
We have provided the children with safe and secure environment, fed them on time and slept on time and they – met their developmental requirements. As for the child’s wellbeing, we have taken them to the doctors when the child has been ill and taken them to the counsellors when we had concerns.
He also told the Court that:
We have known each other for more than 16 years and all the childrens are our biological children. We have done everything well to the best of our ability, and we have taken the children to school, childcare, kinder; we have provided the children with safe, secure environment, fed them on time, slept on time, and have their development requirements met.
I agree with the point made by Mr Weiren that neither of the parents have been neglectful of the children. However, I do not understand the material relied upon by the Secretary to allege general neglect of the children. The concerns at the heart of the case are different: they are concerns that the children face the risk of harm from the Father’s behaviour.
During the course of hearings, Mr Weiren made reference to images of his children reproduced in his affidavit with descriptions of the occasions on which they were taken. Mr Weiren submitted that these images demonstrated that his children were happy and without injury. He said:
And the history goes back of – like, me capturing my children’s photos, they look happy. They look peaceful sleeping in my arms. They’re not scared of me. They love me and I thank the department for the caring, they may be caring people, but I think that information they have is not true. The children are safe and happy in the family home. We well looked after all the children and we love the children. If you keep looking at the photos, you can see the history that we have always been there for our children and we have taught them to love and they love us and when the – they – they have said that the child is fearful, the child has returned home. And the family photos goes back in years and I don’t see – unfortunately many families which is a loyalty is and faith.
He also said:
We have contributed to our children to have positive behaviour as demonstrated in the attached photos. We have set good example by not using drugs or alcohol or smoking. We have provided our children with safe environment, free from toxins. Our house looks relatively clean. We don’t have anything to hide. As you can see in the photos, the children were happy. They don’t have (indistinct) disorder or any mental issues prior to issuing interim accommodation.
I am unable to place decisive weight on any of the images of the children provided in Mr Weiren’s affidavit. They may indeed suggest that the children were feeling safe and happy at the times they were taken. However, the images depict merely an instant in time, and the precise circumstances in which they were taken are not known to me. I consider that the instructions provided by the children to their lawyers should be given greater weight in the evaluation of risk and the best interests of the children that I am required to perform. So too should the potentially harmful cumulative effect of occasions documented in the reports submitted by the Secretary on which it is claimed that the Father has been physically violent or verbally abusive with the Mother in the presence of the children, or has been verbally abusive toward Child One or Child Two.
Mr Weiren submitted that Ms Brooks and the children have objected on many occasions to the interim accommodation order. He submitted that on other occasions Child One has spoken about events that are not true and that the Department has attributed to Child One wishes relating to contact between the Child and her parents that are not true. He also submitted that the Mother told him that Child Two has said that lawyers have muddled up her words and that she wants the judge to hear she is perfectly safe at home. Mr Weiren said, ‘Child Two agrees with the mother that the [Department] should close its case. Child Two says she is safe and well looked after at home’. He went on to submit, in respect of Child One:
She had come to the house, and she had said that she would like the contact to be unsupervised. Now, as to why she would say things that she’s not wanting to have any contact with her father, I can’t understand that. The amount of pressures that these guys put on the children to open up a case and stay on and ignore the wishes of the children when they wanna return home, it’s obvious.
Mr Weiren submitted that the Department’s actions were in breach of the Victorian Public Sector Values, and in particular the value of integrity, which must be demonstrated by ‘being honest, open and transparent in their dealings’.
There is clearly a substantial difference between Mr Weiren’s submissions about the true opinions held by his family members and certain references to those opinions in the reports prepared by the Department. There is also a difference between Mr Weiren’s submissions in this regard and the instructions conveyed by the legal representatives of Child One and, to some extent, Child Two. Child Two is only 10 years old and there is some basis for thinking that her wishes fluctuate from time to time. This provides a valid explanation for the discrepancy between Mr Weiren’s perspective of her wishes and her instructions to her legal representative. The discrepancy with respect to Child One is more stark. I accept that Child One’s wishes are exactly as conveyed by her legal representative. That is, she does not wish to live with, or presently to have any contact with, the Father.
On the basis of the applicable test, I am satisfied that there is a rationally probative basis for thinking that the children face the risk of psychological and emotional harm if they are currently required to live with the Father.
Further, I am not satisfied that the Secretary or staff of the Department have misled the Children’s Court or acted inconsistently in any other way with the Victorian Public Sector Value of integrity.
Mr Weiren relied upon ss 201(a) and (b) of the Act, which establish an offence of giving false or misleading information. In my opinion this provision is not relevant to my determination of the appeal.
Mr Weiren relied on ss 522(1)(a), (b), (c) and (d) of the Act, which require the Children’s Court to take steps to ensure that proceedings are comprehensible to children and children’s parents, to satisfy itself that the child understands the proceeding, to allow the child and parents to participate fully in the proceeding, and to consider any wishes expressed by the child. I do not have sufficient evidence before me to reach a view as to whether these requirements were met in the proceedings before the Children’s Court below. On appeal to the Supreme Court, however, I can be satisfied that these requirements were met. If, hypothetically, there had been any failure by the Children’s Court to meet these requirements, then in any event those requirements have been met now on appeal.
Likewise, Mr Weiren relied on s 11(d) of the Act, which sets out the decision-making principle that the views of all persons directly involved in the decision should be taken into account. I am unable to express a view as to the extent of adherence to this principle during the proceedings below, but I am satisfied that the court on appeal has endeavoured to understand the views of all persons directly affected, and to take those views into account. The appellants also rely on the principle in s 10(3)(p), which refers to the possible harmful effect of delay in decision-making. As far as I can tell, the Secretary and the Children’s Court have endeavoured to give this matter as much expedition as appropriate in the circumstances.
B. Claims that the children face harm from the Department’s interventions
As further noted in the preceding section of these reasons for judgment, the Amended Notice of Appeal Grounds 3, 4, 5d–h, 6, and 7 advance claims that the Secretary’s involvement has had an adverse impact on the children and they face harm from the Department’s various interventions, including what has occurred at Child Two’s school. Mr Weiren made oral submissions and drew my attention to aspects of the affidavit material in support of these claims. I turn to these matters now.
The particulars to Ground 5 included claims that the Children’s Court issued the interim accommodation order ‘contrary to the Children’s wishes’, stating that there is ‘an audio recording of my daughter on the 19th of June 2023 after school. The children clearly did not want to speak with DFFH. She wishes to stay at the family home and due to the order she was forced to leave the home heartbroken and crying’. The particulars include similar claims in respect of Child Three and Child Four.
Mr Weiren also submitted that there have been more than 25 visits by staff of the Department to his home and additional frequent visits to Child Two’s school. He complained that the school had a staff member responsible for student wellbeing who is not appropriately qualified as a registered psychologist. He submitted that both departmental staff and the school staff member have inappropriately intervened in Child Two’s school life with adverse effects on her. For example, he complained that they have taken her by the hand in removing her from classrooms. These submissions raise an important issue. It is incumbent on the Department to be very sensitive about the way it has contact with a child in a school environment. There is an insufficient probative basis for an adverse finding against the Department on this issue, and I make no such finding. However, I expect the Department to exercise great care on this matter. I make no comment on the appropriateness of the qualifications of the school staff member. The education system is responsible for ensuring that staff members have qualifications appropriate to their roles.
Mr Weiren submitted that the Department’s interventions have had an adverse effect on both Child One and Child Two. As to Child One, he submitted as follows:
In 2022 when my daughter had returned home and had told the police on the – on 04/05 that she wishes to return home… I made calls soon after my daughter had returned home and she was vaping and talking about different things…
At that time she was only 13 years old – 12 years or 13 years old. Now, she told me ‘Leave me alone, I wanna go die,’ and she had tears in her eyes and she – she didn’t want me to find out and when I found out I was shocked. Immediately I went to do whatever I could for the problems that the child had returned with, but she didn’t have any problems of this nature previously.
Mr Weiren also said with respect to Child One, ‘I had concerns for her … like eating disorder, like sleeping all day, not wanting to go to school or do anything. I felt concerned about that’.
I note the particulars to Ground 7 in this regard, which state:
Department’s Secretary did not apply the law correctly and ignored best interest principles, for over 18 months when my eldest daughter was managed by the DFFH she lost weight, skipped school, started to vape when she did none of this before, and other negative outcomes as a result of DFFH and court orders which neglected the best interest of the child and did not produce positive outcome, recently the eldest daughter is doing slightly better after I made recommendations to the Children’s Court.
As to Child Two, Mr Weiren stated the following:
They’ve puts the child under so much stress that the child wanted to sleep in our room and didn’t want to go to school. Now, is that appropriate for children to feel fearful to go to school because the child protection is going to hold their hand, and a teacher who is not qualified psychologist is going to do a wellbeing session and refer to the child to the Department of Human Services when the child has not suffered any act of harm; and issue an interim accommodation order. And immediately I knew that this is wrong, but they call me, ringing the school teacher, that the child doesn’t want to go to school, and they call this a significant injury.
In support of Ground 3, Mr Weiren relied in particular on the best interests principles set out at ss 10(3)(b), (p), (q) and (r) of the Act. The gist of his submission was that consideration had to be given to promoting positive relationships between the children and the parents, and to the desirability of siblings being placed together, and that the interventions of the Department over an extended period might have impacted adversely on the family unit in these respects, particularly given the delay in reaching a resolution about their future accommodation arrangements. In a similar manner, in Ground 4 Mr Weiren also relied on s 10(3)(f), relating to the desirability of continuity and stability in the care of children, and s 10(3)(o), relating to the desirability of allowing the education of the child to continue without interruption or disturbance.
In support of Ground 6, Mr Weiren also relied on ss 10(3)(a), (b) and (f) of the Act, which relate to the need to give the widest possible protection to the parent and child as the fundamental group unit of society and to ensure the intervention is limited to that which is necessary to secure the safety and wellbeing of the child, as well as the need to strengthen relationships between children and parents and the desirability of continuity in the child’s care.
All of these matters relied upon by Mr Weiren are significant considerations that must be weighed in the process of determining an appropriate interim accommodation order.
There can be little doubt that, to some extent, interventions by the Department and by the courts impact adversely on the promotion of the worthy objectives represented by these considerations.
However, as well as placing weight on these considerations, it is also necessary to weigh the risk that the children might face psychological and emotional harm if exposed to repeated instances of the reported aggressive behaviour previously shown by the Father. To some extent, it is possible to promote aspects of these considerations at the same time as mitigating the risk of exposure to adverse behaviours from the Father. For example, it is desirable to frame conditions of interim accommodation orders for each of the children so that all of them stay together.
Taking all these matters into account, I am not satisfied that it would be appropriate for the Father to be residing with the children until the Father has progressed in gaining insight about the effects of his claimed aggressive behaviour on his children. I do not think that the Children’s Court was mistaken in making interim accommodation orders that had the effect of preventing the Father from living with the children or having unregulated contact with them. I acknowledge the force of the considerations relied upon by Mr Weiren, but consider that the Act requires me to place significant weight on the need to address risks of harm to each child apparent on the face of rationally probative reports submitted by the Secretary, as well as considering the matters Mr Weiren relies on. The material relied upon by the Secretary establishes a rational and probative basis for thinking that the children would face psychological and emotional harm as a result of continued aggressive behaviours of the Father, were he to be residing with them, given his currently limited insight into the effect of his reported behaviours. It is to be hoped that his level or insight will change in the future, and that this may perhaps happen in the near future. But for the present, the balance of risk is such that conditions preventing the Father from living or having unregulated contact with the children are required, in my view.
Mr Weiren made submissions about a former Australian Public Service officer, Kathryn Campbell. This officer was previously Secretary of the Commonwealth Department of Human Services. I am not satisfied that any of the submissions Mr Weiren made about this officer or that department have any relevance to this appeal.
Mr Weiren drew my attention to a Google review relating to an agency that the Victorian Department of Families, Fairness and Housing have been known to engage from time to time. The review suggested that young people or children in the care of that agency had been inappropriately touched. There is no suggestion that the agency in question has had any role in relation to the children in this case, and I draw no inferences relevant to this appeal from the review.
Mr Weiren submitted that, far from being the cause of the adverse effects he noticed in Child One, he was the one who had sought help out of his concern for Child One. He said that, once he observed Child One’s condition on her return to the family home in 2022, he contacted a particular agency and sought help. I have no reason to doubt that the Father was concerned about Child One and sought help. The Father is to be commended for seeking help for Child One. It is possible that some of the aspects of Child One’s condition that led the Father to seek assistance were caused not by the Father’s behaviour but by adverse experiences Child One was exposed to at the Maternal Grandmother’s home. I address these experiences under the next paragraph. It is not possible for me to form a view as to whether and to what extent the condition of Child One was caused by the Father’s behaviour or the adverse experiences she was exposed to at the Maternal Grandmother’s home. It is necessary to protect the child from both sources of alleged risk.
Mr Weiren also relied, in support of appeal Ground 7, on s 30(1)(b) of the Act, which empowers the Secretary to provide advice and assistance to a child or the family of a child where the Secretary has received a report from a person who has a significant concern for the wellbeing of a child. It does not appear that the Secretary failed to provide advice or assistance to the child or the family in this case. Mr Weiren also relied on ss 174(1)(a) and (b) of the Act. Section 174 imposes certain duties on the Secretary in ‘dealing with a child under section 173’, which is a provision relating to placement of children in circumstances where the Secretary has parental responsibility for the child. None of the orders the subject of this appeal imposed parental responsibility on the Secretary, so this provision is not engaged.
Mr Weiren relied on a number of additional provisions in support of Ground 7. One of these was s 180 of the Act, which imposes an obligation of confidentiality on a person who is given information about a child pursuant to s 179. Section 179 relates to the provision of information to a carer with whom the Secretary intends to place a child, where the carer is a person other than the parent of a child. It is not clear whether any such information was provided to any such carer in this matter. It is also not clear whether Mr Weiren is making an allegation that any such person breached the obligation of confidentiality. These provisions do not contribute to my determination of the appeal.
C. Claims that the children face harm living at the Maternal Grandmother’s home
Mr Weiren further submitted that he believed the reason Child One’s behaviour had deteriorated was that she had, while living at the Maternal Grandmother’s home, been repeatedly sexually assaulted by the Maternal Great Uncle. He explained that, in about 2022, Child One informed him that this had occurred some years earlier. He drew my attention to references to these sexual assaults in reports prepared by the Department indicating that the Department had been aware of these assaults in 2021. He submitted that the Department had acted wrongly in seeking interim accommodation orders resulting in the children residing at the Maternal Grandmother’s home in circumstances where the Department knew of the risk posed by the Maternal Great Uncle. He went as far as to suggest that a breach of s 41O of the Crimes Act 1958 may have occurred.
Mr Weiren stated the following:
The Child Protection has said that they were aware in 2021 and they’ve given a date in August of 2021 that when they first became aware – became aware of the alleged abuse that occurred inappropriately in 2022, when my daughter had returned home …
I had made talks with the Child Protection person and told them that they said the person has – has been moved from the house, even though I knew that, I didn’t know that this person would do such a thing, but they had known and they had removed that person so they knew this all along, and knowingly they put other children at risk.
The reports that Child One was repeatedly sexually abused by the Maternal Great Uncle in 2016 at the Maternal Grandmother’s home are extremely concerning. I am also concerned that this issue was not raised as squarely as it could have been when the Secretary sought interim accommodation orders from the Children’s Court. However, the reports of sexual abuse of Child One were not concealed from the Children’s Court: in the summary information form for the protection application made on 24 and 25 November 2022, there is reference to this matter in a report of an investigation and assessment occurring between 2 August 2021 and 16 November 2021.
In further submissions dated 18 August 2023, the Secretary submitted that the Court cannot set aside an interim accommodation order unless the appellant has established ‘error’ on the part of the Children’s Court.[58] The Secretary submitted that the absence of such a condition was not an error and that, ‘Child Protection would be able to act upon any report of contact between the children and a person believed by Child Protection to have committed sexual offences against a child irrespective of whether a condition was included in the IAOs’. I am not persuaded by this submission. Applying the test in s 271(2)(a) of the Act, I think that a different interim accommodation order should have been made. That is, I think that an interim accommodation order expressly preventing the Maternal Great Uncle from visiting the Maternal Grandmother’s home should have been made.
[58]Citing KDN v The Secretary to the Department of Families, Fairness and Housing [2023] VSC 479, [20].
In my opinion, the interim accommodation orders made by the Children’s Court should have included a condition drawing attention to the risk posed by the Maternal Great Uncle to the children and preventing him from ever visiting the Maternal Grandmother’s home while the interim accommodation orders are on foot. I return to this topic at the end of these reasons.
Mr Weiren stated the following:
A suitable person and they have deemed a child’s grandmother as a suitable person for the best interests of the child named Child One. In their own court report affidavit [Child Protection Practitioner] has explained that the grandmother is constantly drunk, and the floor is not vacuumed, and the child has made this complaint to the children’s – the FFH Services.
Mr Weiren also stated the following:
So we have said from very early on that we do not agree with this interim accommodation order and their suitable person. I have photos of the house, that I did not attach, that shows the clutter, the mess and alcoholism.
Mr Weiren tendered exhibit ‘A1’ at the hearing on 21 August 2023, and informed the Court that his sister had taken the photographs in that exhibit in the period December 2022 to January 2023. The photographs depict a cluttered living area at the Maternal Grandmother’s home. Aside from that, the photographs do not present any significant cause for concern. The Department should forthwith provide assistance to the Maternal Grandmother to reduce the clutter in the living area of her home, to ensure that the clutter does not result in an unhygienic living environment for the children. I likewise return to this topic at the end of these reasons.
As noted above, Mr Weiren raised concerns about excessive alcohol consumption by the Maternal Grandmother. He drew my attention to a passage in a departmental report to this effect. One of the photos in exhibit ‘A1’ also depicted a beer can in a rubbish bag. I am not persuaded that there is any probative evidence for the suggestion of excessive alcohol consumption.
D. Claims of other breaches of the Act
Ground 8 claims a breach of s 268 of the Act on the basis that:
I was not legally represented. I knew it was not reasonable to issue this protection order because the facts were inaccurate, no further investigation was done to issue and was made prematurely.
As I have already mentioned, an interim accommodation order may be made, and an appeal from such an order may be determined, without fully investigating, testing or making findings about contested facts. It is often necessary for the courts to evaluate the material before them without these steps being taken. The evaluation is in the nature of an assessment for rationally probative content and to identify risks and other matters relevant to the best interests of the children concerned. For these reasons, Ground 8 does not establish any flaw in the interim accommodation orders.
The following references to ss 234 and 235 also appear directly under the text of Ground 8 in the notice of appeal:
The honourable Judge may take into note:
s.234 Protection privileges
s.235 Application to revote an order made
s.235 on an application under this section the court may
(a) vary the term of the order or
(b) revoke the order
Elsewhere in the Amended Notice of Appeal under Ground 4, there is a reference to a related provision, s 233 of the Act. Sections 233–235 relate to applications in relation to, or the effect of, ‘temporary assessment orders’. As far as I can see, there was no temporary assessment order made in this case. These provisions are irrelevant to the determination of this appeal.
Before concluding, it should be noted that a number of the grounds of appeal referred to ss 10(3)(p) and 291(3) of the Act. Both sections were repealed in 2016. Prior to its repeal, s 10(3)(p) related to possible harmful effect of delay in the Department’s decision making process. This is now addressed in s 10(3)(fa) of the Act. I have treated references to section 10(3)(p) as references to the current s 10(3)(fa). Section 291(3) is no longer part of the Act. Prior to its repeal, this provision empowered the Children’s Court to make interim protection orders. As this is a repealed provision, I have put it to one side in determining the appeal. Further, a number of grounds referred to s 10(3)(r), which refers to ‘other relevant matters’. I considered all the matters Mr Weiren relied on.
Orders
I propose to set aside the interim accommodation orders in respect of each of the children, and to make them afresh, including a condition to the following effect:
The child’s Maternal Great Uncle, [name], is not to be permitted entry into the Maternal Grandmother’s home, or any other place frequented by the child.
The existing conditions of the interim accommodation order in respect of Child One will remain the same, save that the conditions will now clarify that any contact with the Father is to be at the request of Child One. That request should be made to the Department. Any contact may be unsupervised if Child One wishes there to be no supervision, or alternatively she can request supervision on each occasion. Previously the Department has indicated that the Paternal Aunt would be a suitable person to supervise contact. Any contact should be at a place of Child One’s choosing, other than the Maternal Grandmother’s home.
In respect of Child Two, again, any contact should be dependent on her wishes. However, subject to her expressing a contrary view to the Department, the default position should be that each week the Father should have up to two contacts with Child Two. Contact may, subject to Child Two expressing a contrary view to the Department, be at the paternal family’s home. A person deemed by the Department to be a suitable supervisor must be present, such as the Paternal Aunt.
As to Child Three and Child Four, the Father is to be entitled to at least twice weekly contact with those children, which may occur at the paternal family home, supervised by a person deemed appropriate by the Department, such as the Paternal Aunt.
In other respects, the conditions that apply to the interim accommodation orders to be made for the four children should be the same, with the intent that they will for the time being continue to reside at the Maternal Grandmother’s home in the care of the Mother. This will ensure that the siblings remain together and that the greatest degree of continuity in their living arrangements that is possible at present will be achieved. It is to be hoped that the Father will continue to engage in behaviour management programs and gain insight into the effect of his behaviour, allowing progressively greater involvement in his children’s lives in future iterations of the orders.
In all other respects, the conditions applying to the interim accommodation orders for each of the children should be as consistent as possible. Previously there have been conditions that applied to the orders for some of the children but not others, without any obvious reasons for the differences. It is desirable that the conditions of the interim accommodation order in respect of Child Two, Child Three and Child Four are substantially the same, subject to the condition that any contact between the Father and Child Two be subject to Child Two’s wishes; Child Three and Child Four are not of an age where they are able to express views and wishes. There is otherwise no logical reason for any differences in the conditions of the interim accommodation orders.
It is possible that the Children’s Court could reconsider these orders at any time. The Children’s Court may do so as early as next week, when the matter is scheduled for a further interlocutory hearing. In any event I will, out of an abundance of caution, add a three-month review requirement into the conditions of interim accommodation orders, so that they operate for three months or until further order, whichever is earlier.
In addition, I reiterate that the Department should offer services to the Mother and the Maternal Grandmother to assist in the decluttering of the Maternal Grandmother’s living room. The conditions of the interim accommodation order already require the Mother to accept support services as agreed with the Department, so I will not impose a specific condition in this regard.
SCHEDULE OF PARTIES
| S ECI 2023 03386 | |
| WEIREN | First appellant |
| BROOKS | Second appellant |
| -and- | |
| SECRETARY TO THE DEPARTMENT OF FAMILIES FAIRNESS & HOUSING | First respondent |
| CHILD ONE | Second respondent |
| CHILD TWO | Third respondent |
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