Family Division Judgments and Decisions

DFFH v E siblings 2024 VChC 3

CATCHWORDS – Applications to breach Family Preservation Orders and replace them with Care by Secretary orders – Non-Reunification Case Plan – Parenting Capacity – Good Enough Parenting – Children in Separate Placements – Multiple Placement Changes – Stability and Consistency – Balancing Harms

Magistrate Robyn Hamilton 
6 June 2024

DFFH v M siblings; I siblings [2024] ChCV 1

CATCHWORDS – Applications for Care by Secretary Orders – Non-Reunification Case Plan – Children Removed From Parents From Birth – Father a Registered Sex Offender – Court Record of Conviction Proof Of Offences – s. 276(2)(b) Children, Youth and Families Act 2005 (“CYFA”) not satisfied – Best Interests of the Children – Unacceptable Risk of Harm – The DFFH using the mother’s NDIS funding in its provision of services to the mother.

Magistrate R Hamilton 
12 March 2024

DFFH v ZX [2023] VChC 3

Protection Application grounds (c), (e) Children, Youth and Families Act 2005 (“CYFA”) – s.276A(2)(a) – Expert Evidence/Opinion Evidence as to the Characterisation of Family Violence – Application of s.76 Evidence Act 2008 - Shared Care on a Family Preservation Order – s.524(11) Statement as to the Child’s instructions given or Wishes Expressed – Whether Child’s Academic Performance Impacted by Trauma. 

Magistrate R Hamilton 
17 November 2023

PAA v HJ (a pseudonym) [2023] VChC 1

Applications for: 1) Revocation of long-term care order, and recommendation that a CBSO be made: filed by PAA 2) A finding WG is the psychological father of HJ and an order placing HJ in the care of WG: sought by the child and WG

Catchwords: Child protection – 16 year old Aboriginal child HJ in care of foster carer WG since 2014 and under long-term care order since 2017 – child removed from WG’s care in 2021 as consequence of a report of alleged sexual abuse of a younger child by WG – whether there is evidence of a sexual offence by WG against that child at any level – whether WG is a ‘parent’ within s.3(1) of the Children, Youth and Families Act 2005 – whether it is in HJ’s best interests that the long-term care order be revoked – whether the grounds still exist for a finding that HJ is in need of protection – whether return of HJ to WG’s care poses an unacceptable risk of harm to HJ – whether WG supports HJ culturally – whether a family preservation order placing HJ in WG’s care is in HJ’s best interest. 

Magistrate Melissa Stead
17 November 2023

DFFH v West (a pseudonym) [2022] VChC 2 (1421)

Child protection – preterm twins with marks – medical imaging, repeat x-rays – protection applications by emergency care under s.162(1)(c) and (e) CYFA – medical expert witnesses’ evidence regarding the marks and single fracture to each child – accepted that the marks were not deliberately inflicted – unlikely that the parents will inadvertently cause further marks to the children in providing care in the future – medical imaging and timing of rib fractures. 

Magistrate Stead 

16 December 2022

DFFH v WE & WL [2022] ChCV 1

Catchwords: Child protection – family reunification order (FRO) – children initially placed with their maternal grandmother – application to extend FRO – the Secretary of the Department of Families, Fairness and Housing (the Secretary) then placed the children with their father, intending to transfer parental responsibility to him – whether the Secretary has power to direct that a parent is to resume parental responsibility when there is an application to extend a FRO before the Court – no express provision in the Children, Youth and Families Act 2005 (the Act) which precludes the Secretary from being able to exercise administrative power in these circumstances – s. 288A of the Act – Secretary’s non-compliance with certain statutory requirements, including pursuant to s. 288A(1) directing in writing that a parent resume parental responsibility for the child to the exclusion of the Secretary – the Children’s Court does not have the power to conduct a judicial review of an administrative decision of the Secretary – future direction of the case – upon s. 288A direction and notices being given – ‘on and from the date of the direction’ under s. 288A(1) the FRO ceases – unless there is an application to extend a family preservation order simultaneously filed on the date of direction, there will not be any order before the Court to extend.

Magistrate Jennifer Bowles 
2 September 2022

Re JH [2021] VChC 2

Catchwords: Child protection – child aged three years and 10 months – whether Mr S, the former step-father of JH, fell within the definition of ‘parent’ in s3(1) of the Children, Youth and Families Act 2005 – concept of a psychological parent – whether Mr S the psychological father of JH – relevant factors for consideration – expert assessment – categorisation of adult as a psychological parent can change over time – at some point in time Mr S ceased to be JH’s psychological father.

Magistrate Hubble
11 May 2021

DHHS and CMR [2020] VChC 8

Catchwords: Child protection – child aged 5 years, 1 month – child residing out of parental care for a significant proportion of her life – application for Permanent Care Order in favour of maternal grandparents – protective concerns revolving around the parents’ illicit drug use, criminal offending, mental health and family violence – parents’ efforts to address protective concerns – whether the Court should make a Permanent Care Order – definition of “parent” – whether the Court should make a Family Preservation Order – whether the Court should make a Care By Secretary Order – order most likely to promote the child’s best interests given her young age

Magistrate Gail Hubble
22 December 2020

DHHS and C1, C2 and C3  [2020]  VChC 7

Catchwords: Catchwords: Child protection – applications allege that the children are in need of protection on the basis that they have suffered or were likely to suffer, sexual, physical and emotional harm – application for Family Preservation Order placing the children in the care of their mother – allegations of sexual misconduct made by C1 and C2 against the father subject of intervention order contest in 2019 – intervention order made to protect C1 and C2 – issue estoppel – breach of Interim Accommodation Order – question of whether any of the grounds under s.162(1) of the Act are established – construction of s.274 of the Act – ability of the court to take into account events which post-date the filing of a protection application in determining the question of whether a child is in need of protection. 

Magistrate Gail Hubble
11 December 2020

DHHS and TH & CH [2020] VChC1

Submissions Decision - Application for a new Interim Accommodation Order.

Magistrate Kim Parkinson
2 April 2020

DHHS and Sakin (a pseuodonym) [2020] VChC4

Catchwords: Child protection – protection applications pursuant to s162(1)(c) and (e) of the Children, Youth and Families Act 2005 - three children aged 13, 6 and 4 years - DHHS seeking proof of the protection applications and upon proof, and family preservation orders with the children in the care of their mother - alleged risk posed by the father to the children - totality of the evidence - matters raised and relied upon by DHHS not proven - issues surrounding the children’s best interests capable of being resolved by the Federal Circuit Court in its Family Law Act 1975 (Cth) jurisdiction - protection applications dismissed - matter to return to the Federal Circuit Court. Intervention order - associated application for family violence intervention order - application initially made by mother - variation to interim order subsequently sought by Victoria Police to include the three children - findings of fact in relation to allegations of family violence and alleged breaches by the father - applications in relation to the mother and children dismissed.

Magistrate Kim Parkinson
19 March 2020

DHHS and Oscar (a pseudonym) [2019] VChC 4

Catchwords: Child protection – child seven years of age – application for revocation of long-term care order – s. 306 Children, Youth and Families Act 2005 – submissions made regarding determination of the application by evidence contest or submissions – DHHS v Sanding [2011] VSC 42 distinguished – procedural rights of parties – whether child could be placed on an interim accommodation order – parental responsibility conferred on the Secretary – exceptional circumstances – order for child to be legally represented (Independent Children’s Lawyer) – s.524(4) Children, Youth and Families Act 2005.

Magistrate Jennifer Bowles
23 December 2019

DHHS and Oliver (a pseudonym) [2019] VChC 5

Catchwords: Child in need of protection – risk of emotional or psychological harm – Family Reunification Order (FRO) – change in care arrangements for the child –– application for revocation of FRO – Ms Cardell as sole carer for the child an untested scenario – protective concerns unresolved – the child’s best interests – application refused – Care by Secretary Order granted.

Magistrate Gail Hubble
30 August 2019 

DHHS and C siblings [2019] VChC 6

Catchwords: Children in need of protection – three siblings subject to Interim Accommodation Orders in the care of their stepfather – two of the children with special needs – submissions on the placement of the children pursuant to Family Preservation Orders – consideration of matters including parenting styles and mental health of both parents, and the children’s express wishes – risks of forcing the children to move placement again – Family Preservation Orders made for each child for 12 months, placement with their mother and stepfather – fortnightly weekend contact with their father, subject to the children’s wishes.

Magistrate Gail Hubble
10 April 2019

DHHS and K [2016] VChC 2

Catchwords: Child protection – interim accommodation order contest – effect of transitional provisions of the Children, Youth and Families Amendment (Permanent Care and Other Matters) Act 2014 on proceedings to breach supervised custody order – calculation of period of time child has been in out of home care including relevance of time child has been on a supervised custody order – s287A Children, Youth and Families Act 2005 – effect of child being in out of home care for in excess of 24 months – effect of suspension of a supervised custody order – s262(6) and (7) Children, Youth and Families Act 2005 – s14(2)(d) Interpretation of Legislation Act 1984 – interim accommodation order could not be extended beyond 29 February 2016 – new protection application issued.

Magistrate Jennifer Bowles
29 February 2016

DHHS and J [2015] VChC 1

Catchwords:  Child protection - application for Therapeutic Treatment Order - children engaging in sexually abusive behaviours towards each other in residential unit - definition of "sexually abusive behaviours" - whether Therapeutic Treatment Order necessary to facilitate attendance at an appropriate therapeutic program.

Magistrate Jane Gibson
6 March 2015

ABC and DHS & others [2014] VChC 1

Catchwords:  Media application - section 534 Children, Youth and Families Act 2005 - restriction on publication of proceedings - application to publish pictures of parties to a proceeding in de-identified form - whether prohibition also applies to partial/pixilated/distorted pictures of a child or other party - best interests principles - whether public interest outweighs minimal risk of identification.

Judge Peter Couzens
2 July 2014

DOHS and K siblings [2013] VChC 1

Catchwords: Child protection - application to extend Guardianship to Secretary Orders - Aboriginal children - legislative provisions - regard to advice of relevant Aboriginal agency - maintenance of culture and identity - continuing contact with Aboriginal family, community and culture - cultural support plans.

Magistrate Belinda Wallington
8 February 2013

TW, DOHS and P, F & R children [2009] VChC 6

Catchwords: Child protection - protection application - factual basis and proof of risk of sexual harm.

Magistrate Belinda Wallington
8 April 2009

DOHS v B siblings; H siblings [2009] VChC 4

Catchwords: Child protection - protection applications - custody to Secretary order - whether the Children's Court has power to include a condition on the order that siblings be placed together - ruling.

Judge Paul Grant
11 June 2009

DOHS v Ms K & Mr L [2009] VChC 3

Catchwords: Child protection - protection application - interim accommodation order contest - mother's heroin use leading to apprehension of child - child aged 12 years, 3 months with a very positive emotional bond with mother - child in mother's care all her life until apprehended and placed in out of home care 3 months ago - recent resumption of contact between child and father - whether in best interests of child to be returned immediately to mother or placed with father until eventual reunification with the mother or remian in current foster care placement until eventual reunification with the mother - whether father's and mother's access with the child should be unsupervised, unmonitored and overnight - Children, Youth and Families Act 2005, ss. 8, 10, 270 - F v C [Supreme Court of Victoria, unreported, 28/01/1994].

Magistrate Peter Power
18 May 2009

DOHS v Mr O & Ms B [2009] VChC 2

Catchwords: Child protection - protection application - likelihood of sexual abuse and associated physical and emotional abuse - father found guilty of possession of child pornography and using service carrier to offend - father a registered person under the Sex Offenders Registration Act 2004 - mother willing to return to Tasmania - whether in best interests of infant daughter aged 1 year 5 months to place her in mother's full time care on supervision order or to place her on a custody to Secretary order - whether respite care conditions may be included in supervision order - whether father's access may occur at his home in Victoria and be supervised by paternal grandmother - Children, Youth and Families Act 2005, ss. 8, 10, 162(1)(c), 162(1)(d), 162(1)(e), 280.

Magistrate Peter Power
20 February 2009

DOHS v Mr D & Ms W [2009] VChC 1

Catchwords: Child protection - protection application - children aged 5 years 9 months, 2 years 9 months and 1 year 6 months - protective concerns centred on mother's mental health and use of cannabis and prescription medication as well as domestic violence in the relationship between the mother and father and environmental neglect while in mother's care - criticism of DOHS for ins initial recommendation of custody to Secretary order when father was willing and able to parent the children and there were no identified protective concerns about him - effect of mother's failure to give evidence - cumulative risk of harm - protection application proved on likelihood of emotional harm - whether in best interests of children to be placed on supervision order in care of the father or on supervision order in the care of the mother with assistance from a material aunt - conditions relating to access of mother and maternal aunt - relationship with orders under the Family Law Act 1975 (Cwth) - Children, Youth and Families Act 2005, ss. 8, 10, 162(1)(c), 162(1)(e), 162(2), 280-282 - F v C [Supreme Court of Victoria, unreported, 28/01/1994].  Inconsistency between child protection order and family violence intervention order - dangers inherent in ex parte orders - father's attendance at counselling - variation of intervention order to remove inconsistency - Family Violence Protection Act 2008, s. 173.

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Magistrate Peter Power
7 January 2009

KB, DOHS and CR & KR [2008] VChC 5

Catchwords:  Child protection - protection application - legal representation ordered for child not mature enough to give instructions - skin lesions - failure to heal - causation - Munchausen by Proxy/Dermatologica Artifacta - earlier protection application proved by consent - expert medical evidence - whether in the best interests of the child to be placed in out of home care on a custody to Secretary order or returned to the mother's full-time care on a supervision order via a transitional period on a further interim accommodation order.

Magistrate Jennifer Bowles
22 February 2008

DOHS v Mr D & Ms B [2008] VChC 2

Catchwords: Child protection - protection application - children aged 6 years 6 months, 4 years, 2 years 3 months and 4 months - protective concerns centred on substantial environmental neglect in an old Ministry of Housing flat, on the oldest child found wandering on occasions some disstance from home and on the mysterious disappearance of the parents and children from the family home and their subsequent location in a motel - whether custody to Secretary orders for the 3 oldest children should be extended and varied to reflect a non-reunification case plan or extended and revoked with the children returning to parental care on supervision orders - whether youngest child should be placed on a custody to Secretary order [to reside with the maternal uncle] or on a supervision order in the parents' care - whether oldest child autistic - attachment and bonding of children and parents - recommended sequence for reunification of children with parents - conflicting professional opinions on reunification analysed - criticism of DOHS for its recent handling of this case - 'traumatic history' of the children's removal from parents and being shuffled around from one placement to another - conditions relating to access of parents and oldest children - interim variation of custody to Secretary orders - Children, Youth and Families Act 2005, ss. 8, 10, 162(1)(c), 162(1)(e), 162(f), 295-297, 302, 308.

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Magistrate Peter Power
29 September 2008

DOHS v Ms B & Mr G [2008] VChC 1

Catchwords: Child protection - protection applications and applications to extend and vary custody to Secretary orders - protective concerns centred on relationship between mother and father and father's history aggression - whether in best interests of children to be caseplanned for permanent care or reunification with one or both parents - admissibility of prior DOHS reports - issue estoppel - expert evidence - attachment - frequency and duration of access - conditions relating to parental and sibling access - Children, Youth and Families Act 2005, ss. 8, 10, 162(1)(c), 162(1)(e), 162(1)(f), 287, 296-297, 301-302.

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Magistrate Peter Power
5 June 2008

DOHS v Mr & Mrs H [2007] VChC 2

Catchwords: Child protection - protection application - child abuse - serious injury - causation - non-accidental injury - death of sibling - SIDS - objection to autopsy.

Magistrate Susan A. Blashki
19 December 2007

DOHS v Mr & Mrs B [2007] VChC 1

Catchwords: Child protection - applications to revoke, alternatively to vary custody to Secretary orders - protective concerns centred on mother's impulsive, aggressive and anti-social behaviour and father's neurological impairment and alcohol intake - two oldest children aged 7 years 6 months and 5 years 3 months in out of home care with long-term foster carer who was not able to become their permanent carer - youngest child aged 4 years 3 months in out of home care with paternal aunt - whether custody to Secretary orders should be revoked and replaced with guardianship to Secretary orders - relevant test - conditions relating to parental and sibling access - relevance of children's wishes - role of court in case-planning decisions - Children, Youth and Families Act 2005, ss. 8, 10, 166-168, 301, 308, 310.

Magistrate Peter Power
17 December 2007

NM, DOHS and BS [2004] VChC 1

Catchwords: Child protection - applications to extend and revoke guardianship to Secretary order - from birth child had been living in a home characterised by chaos, violence between the parents and their excessive use of alcohol - at about age 15 months child was removed from parents' care after father had observed injuries on child's face consistent with him having been assaulted while in mother's care - whether 4 year old child should remain in the care of foster carers with whom he had lived for 15 months or be returned to the care of his mother - sequence in which the two applications should be heard - roles of Children's Court and Victorian Civil and Administrative Tribunal - whether the review provisions in the legislation have any affect upon the powers and responsibilities of the Children's Court in the determination of applications it has jurisdiction to hear - whether reunification with mother or permanent care in best interest of the child - safety and wellbeing of the child - attachment - "changed circumstances" - Children and Young Persons Act 1989, ss. 107, 109, 122 [df. Children, Youth and Families Act 2005, ss. 295, 305, 307, 333].

Judge Jennifer Coate
21 December 2004