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ZD v Secretary to the Department of Health and Human Services

ZD v Secretary to the Department of Health and Human Services

Case [2017] VSC 806 22 December 2017

Appeal

Best Interests of the Child

Statutory Interpretation

Administrative Law

Family Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2017 04406

ZD[1]	Appellant
v
Secretary to the Department of Health and Human Services & Anor	Respondents

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant and second respondent.

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JUDGE:	OSBORN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November, 15 December 2017
DATE OF JUDGMENT:	22 December 2017
CASE MAY BE CITED AS:	ZD v Secretary to the Department of Health and Human Services
MEDIUM NEUTRAL CITATION:	[2017] VSC 806

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COURTS – Appeal from decision of Children’s Court Magistrate in respect of condition to vaccinate children imposed in the best interests of the child as part of interim accommodation order pursuant to s 263(7) of the Children Youth and Families Act 2005 – Whether decision beyond power or otherwise misconceived nature and scope of power – Whether power extends to making decisions with significant long-term consequences for child – Appeal dismissed.

HUMAN RIGHTS – Best interests of the child – Charter of Human Rights and Responsibilities Act 2006 considered.

STATUTORY INTERPRETATION – Meaning of ‘any condition’ for the purpose of s 263(7) of the Children Youth and Families Act 2005.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the First Respondent	Dr I R L Freckelton QC	Department of Health and Human Services
For the Attorney-General	Ms M J Richards SC with Mr D A Bruno	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background facts................................................................................................................................ 3

The Magistrate’s reasons................................................................................................................... 4

The CYFA............................................................................................................................................ 5

Statutory Interpretation................................................................................................................... 12

The grounds of appeal.................................................................................................................... 13

Analysis.............................................................................................................................................. 13

The power to impose conditions................................................................................................... 14

The breadth of the concept of best interest................................................................................. 15

Parental responsibility.................................................................................................................... 15

The structural argument.................................................................................................................. 16

The interim nature of the order..................................................................................................... 19

Charter of Human Rights and Responsibilities Act 2006......................................................... 20

Conclusion......................................................................................................................................... 25

HIS HONOUR:

Introduction

This case concerns the power of a Children’s Court Magistrate to authorise the vaccination of young children as an incident to the making of an interim accommodation order (‘IAO’).

The power in issue is the power granted by s 263(7) of the Children Youth and Families Act 2005 (‘CYFA’):

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.

In the present case, the condition imposed by the Magistrate provided in the order for each child that:

The child may be immunised in accordance with DHHS immunisation schedule and in accordance with the approved immunisation program (as attached to this minute).

The appellant (the children’s mother) appeals this condition pursuant to s 271(1)(b) of the CYFA which gives her standing as a parent to do so.

Section 271 provides for an appeal on the merits. In this regard, it is to be contrasted with a raft of other provisions in the legislation of…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: ZD v Secretary to the Department of Health and Human Services [2017] VSC 806
Case: [2017] VSC 806
Decision Date: 22 December 2017

CaseChat Overview and Summary

ZD brought an appeal against a decision of the Children’s Court Magistrate in which an interim accommodation order was made requiring the children in ZD’s care to be vaccinated. The appeal was heard in the County Court of Victoria. ZD argued that the Magistrate’s decision to impose the vaccination condition was beyond the power of the court or otherwise misconceived, and that the power under s 263(7) of the Children Youth and Families Act 2005 did not extend to making decisions with significant long-term consequences for the child. The court considered whether the power to impose any condition as part of an interim accommodation order included the ability to make a decision with significant long-term consequences for the child and whether the power was limited to decisions that would benefit the child in the short term. The court concluded that the power to impose a condition as part of an interim accommodation order included the ability to make a decision with significant long-term consequences for the child, and that the power was not limited to decisions that would benefit the child in the short term. The court also considered the best interests of the child under the Charter of Human Rights and Responsibilities Act 2006. The court found that the decision to impose the vaccination condition was within the power of the court and was in the best interests of the child. The appeal was dismissed.

Orders