Plaintiffs Oppose Care by Secretary Order

SL v Department of Families, Fairness and Housing [2021] VSC 523 (25 August 2021)

The parties are in dispute over the protection order, as well as later protection applications concerning child J and child A. The Children's Court made a ‘care by Secretary order’ in relation to child J so that the parental responsibility for child J was conferred on the Secretary for 24 months. The plaintiff asserts that such order was wrongly made. 

Facts:

The plaintiff is the mother of child J and child A.  The Children’s Court made a ‘care by Secretary order’ in relation to child J so that the parental responsibility for child J was conferred on the Secretary for 24 months.  The care by Secretary order was presently referred to by Senior Counsel for the first defendant as a kind of ‘protection order’.  Prior to the hearing on 1 August 2018, the Secretary prepared a 270 page Court Book containing various medical and other material recording that child J had suffered injuries at various times. 

A report from the Victorian Forensic Paediatric Services dated 9 October 2017 by Dr Tully stated that “the pattern of injury to J is unusual and highly concerning”.  The events before the Children’s Court on 1 August 2018 were recorded in a transcript prepared by the representatives of the plaintiff.  The transcript does not reveal that the Court was taken to any part of the Court Book.  It appeared that the plaintiff, her husband and child J did not oppose the making of a care by Secretary order on the basis that the Secretary had established the need for such an order. 

They however disputed the contents of some reports in the Court Book, and the inferences and conclusions drawn therefrom by DHHS’.  No appeal was sought to be brought from the care by Secretary order.  Prior to the expiry of the care by Secretary order, on 29 July 2020, the Secretary sought an order that child J be made subject to a ‘long-term care order’.  The effect of such an order would be to confer parental responsibility for child J upon the Secretary until he marries or attains 18 years. 

The Secretary applied for both a care by Secretary order and, it seems, also a long-term care order in respect of child A.  The first defendant submitted that the parents are estopped from asking the Court to rehear issues already finally determined by the Court, from calling witnesses and adducing or producing evidence concerning matters already determined by the Court, insofar as this evidence is adduced or produced in order to rehear those issues already finally determined by the Court.

Issue:

Whether or not the finding of actual physical harm having been suffered by child J in the care of his parents constitutes an issue estoppel under which the Court is bound to accept those facts.

Applicable law: 

Children, Youth and Families Act 2005 (Vic), ss 274, 275, 289, 290, 328 and 329 - where the Court may make an order under this Part in respect of a child if the Court finds that the child is in need of protection, the types of protection order as well as the care by Secretary order is substantiated in this Act. 

Children, Youth and Families Act 2005 (Vic) s 10 - 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.

Children, Youth and Families Act 2005 (Vic), s  162 - provides that a child is in need of protection if the child has suffered, or is likely to suffer, significant, emotional or psychological harm or if the child’s physical development or health has been, or is likely to be, significantly harmed and the child’s parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care.

Walton v Gardiner (1993) 177 CLR 378, 392-393 - where it was held that conducting the present application relation to a child on the basis that an earlier order was wrongly made is an endeavour inconsistent with the proper administration of justice. 

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 - it was held that a judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. 

Patsuris v Gippsland and Southern Rural Water Corporation[2016] VSCA 109; (2016) 218 LGERA 167, [41]-[47] - provides that a simple appeal does not operate as a stay upon the order from which appeal is brought.

Derks v R&J Fibreglass Pty Ltd [2009] VSC 601 - provides that any issue fundamental to the judgment or order will be conclusively determined. But where the evidence does not assist, it may be that all that will bind the parties will be the judgment or order.

Tomasevic v State of Victoria (Department of Education and Early Childhood Development) [2018] VSCA 325, [52], [65]-[68] - where it was held that it is important to identify, with precision, the issues decided in the earlier proceeding and the issue that falls for determination in the present proceeding in order to determine whether there is ‘the requisite identity between any of the issues in the two sets of proceedings’.

Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 - provides that an issue estoppel may arise where the parties or their privies are the same. 

Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 - provides that it is a ‘central tenet’ of the judicial system that controversies once resolved are not to be reopened except in a few, narrowly defined circumstances.

Analysis: 

The position of the first defendant is that the care by Secretary order of 1 August 2018 created an issue estoppel that bound the parties in respect of any legally indispensable issue of fact or law.  It was contended that a consequence of the estoppel was that the material in the earlier Court Book that could be said to have supported the making of what was described as the ‘actual harm’ finding could not now be challenged.  The plaintiff contends that the care by Secretary order was wrongly made.  The earlier order was made in circumstances where there was already some measure of underlying dispute concerning the injuries and any explanation for them, yet the order was made unopposed anyway.

Conclusion:

The Court concluded that no estoppel arose in the present application or applications concerning child A.  An estoppel arose in respect of the present application concerning child J, but that does not extend beyond the finding earlier made that child J had suffered what the parties described as ‘actual harm’. That estoppel does not prevent the plaintiff from adducing evidence or calling witnesses in order to contest any proposition that particular injuries were suffered by child J or in respect of what might broadly be called the issue of ‘responsibility’ for harm of that type. The plaintiff may not contend that the earlier care by Secretary order was wrongly made. The decision of the Magistrate concerning issue estoppel should be quashed and the present applications returned to the Children’s Court to be determined according to law.