Appeals - advice

This advice provides information regarding appealing decisions made in the Children’s Court.

Introduction

The following appeals and judicial review processes are available from Children’s Court orders:

  • appeals from interim accommodation orders (IAOs)
  • appeals of temporary assessment orders (TAOs)
  • appeals to the County Court or Supreme Court
  • appeals to the Supreme Court on a question of law
  • Supreme Court judicial reviews.

The decisions of the Children's Court magistrates or the President are not binding on other members of the judiciary, though in practice are often persuasive. In contrast, decisions of the Supreme Court are binding on the Children's Court.

Time constraints apply to all appeals and judicial reviews, depending on the court and type of appeal that is instituted. The CPLO is the instructing solicitor in appeal matters and ensures necessary compliance with appeal timeframes.

Although the minimum legal delegations for a decision to institute an appeal against a Children's Court decision rests with the divisional child protection operations manager, by policy the divisional Deputy Secretary must approve any such decision. The Director, Statutory and Forensic Services (50 Lonsdale Street) will be consulted whenever an appeal is considered. It is necessary for the decision-maker to take into account legal advice. It is the decision of the relevant delegate in the division as to whether an appeal is initiated on a particular case. As delegates of the Secretary, decision-makers are acting on behalf of the State of Victoria. The State is required to act as a model litigant. This requirement involves the State not taking legal action that is frivolous and without an evidentiary base.

See procedure Appeals to the County or Supreme Court for tasks that must be undertaken.

When it is appropriate for the Secretary to institute an appeal

See Model litigants guidelines, which explain that the State can undertake and pursue appeals, if:

  • the state or the agency believes that it has reasonable prospects for success or
  • the appeal is otherwise justified in the public interest.

Reasonable prospect of success

The Supreme Court recognises the specialist nature of the Children's Court, and acknowledges weight should be accorded to the decision of the presiding magistrate or judge. Further, IAO appeals have been conducted after submission contests where both the Children's Court and the Supreme Court have not had the benefit of testing evidence, which similarly weighs against overturning the decision of the lower court.

However, if it may be demonstrated that the decision made by the presiding magistrate or President is unreasonable, in the sense that no magistrate or President acquainted with the facts of the case could reasonably have reached the decision made, the Supreme Court may overturn the decision. For example, if a magistrate decides that a child who is the subject of a emergency care application is not at an unacceptable risk of harm on the basis that the magistrate accepts an explanation from a parent or caregiver that is unreasonable, implausible or inadequate, this may constitute a basis on which to initiate an appeal to the Supreme Court if the department holds well-founded protective concerns for the child's care while the child is subject to the Children's Court order. Other grounds on which a decision made by the Children's Court may be challenged include:

  • a failure by the presiding magistrate or President to take into account a relevant consideration, or a decision which takes into account an irrelevant consideration
  • a failure by the presiding magistrate or President to give the Secretary a fair hearing prior to making a decision, or the appearance of, or actual, bias on the part of the presiding magistrate or President
  • the presiding magistrate or President has made a decision which could only have been made if a particular matter was established, but no evidence or other material was presented from which the magistrate or President could reasonably be satisfied that the matter was established
  • the presiding magistrate or President based their decision on a fact or facts which did not exist.

Public interest

The Secretary may pursue an appeal if they consider an appeal to be in the public interest. The public interest in appealing a decision of the Children's Court may be that of ensuring the safety and protection of a vulnerable child in circumstances in which the order made by the Children's Court is unjust and places the child at an unacceptable and immediate risk of harm. Alternatively, it may not be in the public interest for the Secretary to pursue an appeal if the cost of the appeal or the use of court resources would place an unjustifiable burden on limited public resources, and the decision of the Children's Court is just.

Appeal of an interim accommodation order

Section 271 of the CYFA stipulates that if the Children's Court makes an IAO in respect of a child or dismisses an application for an IAO in respect of a child, then:

  • the child or
  • a parent of the child or
  • a protective intervener

may appeal to the Supreme Court against the order or the dismissal.

On an appeal under this section against an IAO, the Supreme Court can either:

  • set aside the order of the Children's Court and make any other order that it thinks ought to have been made, if it thinks that a different IAO should have been made, or
  • in any other case, dismiss the appeal.

On an appeal under this section against the dismissal of an application for an IAO, the Supreme Court can either:

  • make the order it thinks ought to have been made, if it thinks that the application should not have been dismissed, or
  • in any other case, dismiss the appeal.

Determining whether it is appropriate to conduct an IAO appeal is a challenging area for child protection. These appeals are usually considered when an urgent decision was made by the Children's Court in relation to the placement of a child or the contact arrangements for the child, and child protection remains concerned that the child is at risk of significant harm.

This situation can arise late in the day, when the relevant child protection staff and their legal representatives have been actively engaged in the court procedure for the day. Discussion is required between senior divisional management, the Director, Statutory and Forensic Services, CPLO and the legal representative who appeared for child protection. The Practice Court of the Supreme Court has procedures for a judge to be available into the evening if the urgency of the matter requires.

The Supreme Court may set aside an order of the Children's Court and make another order if:

  • The decision of the presiding magistrate or President of the Children's Court is unreasonable, in the sense that no magistrate or President familiar with the facts of the case could reasonably have made the decision. For example, if a presiding magistrate or President decides that a child is not at an unacceptable risk of immediate harm as the magistrate or President accepts an explanation given by the child's parent or carer that is clearly unreasonable, implausible or inadequate, yet child protection continues to hold well-founded protective concerns for the child's safety in the care of the parent or carer.
  • The presiding magistrate or President did not consider all relevant matters in making the decision, and either took into account an irrelevant consideration or failed to take into account a relevant consideration.
  • The presiding magistrate or President did not give a party a fair hearing before making the decision, or appeared to be biased in making the decision.
  • The decision of the presiding magistrate or President required that a particular matter be established, but no evidence or other material was presented to the magistrate or President on which they could reasonably be satisfied that the matter was established.
  • The magistrate or President based the decision on a fact or facts which did not exist.

The CPLO has developed an IAO appeal kit, which is a useful additional tool when IAO appeals are considered.

Appeal of a temporary assessment order

Section 239 of the CYFA stipulates that if the Children's Court makes a TAO in respect of a child or dismisses an application for a TAO in respect of a child then:

  • the child or
  • a parent of the child or
  • the Secretary

may appeal to the Supreme Court against the order or the dismissal.

The Secretary may appeal to the Supreme Court against an order by the Children's Court dismissing an application for a TAO in respect of a child without giving notice.

On an appeal under this section against a TAO, the Supreme Court can either:

  • set aside the order of the Children's Court and make any other order that it thinks ought to have been made, if it thinks that a different TAO should have been made or
  • in any other case, dismiss the appeal.

On an appeal under this section against the dismissal of an application for a TAO, the Supreme Court can either:

  • make the order it thinks ought to have been made, if it thinks that the application should not have been dismissed, or
  • in any other case, dismiss the appeal.

Any appeals against a TAO, or refusal to make a TAO, create new precedents in this area, because these orders have not been used extensively and there is no current case law directly applicable to them.

Situations may arise where the parents or child appeal a TAO and contend that the terms of the order impinges on their or the child's rights. This may be applicable if the order allows for a medical examination of the child despite the parent's refusal to consent to this procedure.

Appeals to the County Court or Supreme Court pursuant to s. 328 of the CYFA

Section 328 of the CYFA states that:

  • the child who is the subject of the order or application
  • the parent of that child
  • the protective intervener
  • the person who has been granted parental responsibility in a permanent care order
  • the Secretary

may appeal to the County Court or, if the court was presided by the President, to the Trial Division of the Supreme Court, against:

  • a protection order
  • the dismissal of a protection application or an irreconcilable difference application
  • an order requiring an undertaking where the Court has not found the child to be in need of protection
  • a therapeutic treatment order or therapeutic treatment placement order
  • the dismissal of an application for a therapeutic treatment order or therapeutic treatment placement order
  • an order varying, revoking or extending a therapeutic treatment order or therapeutic treatment placement order
  • an order varying or revoking a family preservation order, a family reunification order, or permanent care order
  • an order extending family preservation order, a family reunification order, or a care by Secretary order
  • an order revoking a care by Secretary order or a long-term care order
  • an order made following a breach of a family preservation order
  • the dismissal of an application for any of the above orders
  • a permanent care order or the dismissal of an application for a permanent care order.

An appeal under s. 328 of the CYFA does not act as a stay of any order made by the Children's Court, unless the County Court or Supreme Court so orders with respect to the whole or any part of the order.

In practice, this appeal right to the County Court is the most-used appeal right. Parents predominantly institute these appeals. It is rarely an appropriate avenue of appeal for the Secretary, because either the concerns are of an immediate nature and there is no provision for these appeals to be heard urgently by the County Court or an appeal relates to an error of law argument. These types of appeals are heard in the Supreme Court.

Appeals in the County Court are a full re-hearing of the matter. They are called hearings 'de novo'. The appellate court does not determine if the Children's Court should, or should not have, made the orders being appealed. So the appellant does not need to establish an error by the judge or magistrate who presided in the Children's Court.

The CYFA allows the Children’s Court or the County Court to order an extension of a protection orders from the date of the hearing

Appeals to the Supreme Court on a question of law

Section 329 of the CYFA states that any person who has been a party to a proceeding in the Family Division of the Children's Court may appeal to the Supreme Court, on a question of law, only from a final order of the Children's Court. This includes the person named in the application for a permanent care order.

An appeal under s. 329 must be instituted not later than 30 days after the day on which the order was made and does not operate as a stay of any order made by the Children's Court unless the Supreme Court so orders. The Supreme Court may, as it thinks fit, provide for a stay of the order made by the Children's Court. This means that the order of the Children's Court has no effect. The Supreme Court may make any interim accommodation order pending the hearing of the appeal.

After hearing and determining the appeal, the Supreme Court may make such order as it thinks appropriate, including an order referring the case for a re-hearing to the Children's Court, with or without any direction in law.

Examples of errors of law

The Children's Court provides examples of errors of law on their website:

  • application of a wrong legal principle
  • misapplication of a legal principle
  • a major error in relation to the facts in the case which has significantly affected the outcome and which is sufficiently gross to be considered an error of law
  • an outcome outside the range of orders reasonably open to the trial judge or magistrate on the evidence before them
  • a failure, in certain circumstances, to provide reasons for the decision, which leave the appeal court unable to determine by what process the result was reached.

(Children's Court of Victoria, Court Operation - www.childrenscourt.vic.gov.au).

Issues to consider on appeals from an error of law

  • How has the court erred in law?
  • What are the likely outcomes of an appeal to the Supreme Court?
  • What are the implications of an adverse finding on appeal?

These matters will be considered by divisional and central child protection in consultation with the CPLO. Often the assistance of legal counsel is sought. These appeals can only be brought on final orders. Therefore, this type of appeal cannot be instituted on IAOs or TAOs.

Reservation of question of law for determination by the Supreme Court

If a question of law arises in a proceeding before the Family Division of the Children's Court, the Court, of its own motion or on the application of any person who is a party to the proceeding, may, with the consent of the President, reserve the question in the form of a special case stated for the opinion of the Supreme Court.

If a question of law has been reserved for the opinion of the Supreme Court, the Children's Court cannot:

  • finally determine the matter until the opinion of the Supreme Court has been given or
  • proceed in a manner or make a determination that is inconsistent with the opinion of the Supreme Court on the question of law.

Appeals to be heard in open court

Section 330 (CYFA) stipulates that proceedings on an appeal are to be conducted in an open court. Exceptions to this are when the County Court or Supreme Court orders that the whole or any part of the proceeding be heard in a closed court or orders that only persons or classes of persons may be present during the whole or part of the proceedings.

Receiving application to appeal a Children's Court decision

When the child protection practitioner is served with an application to appeal a Children's Court decision in the County Court or Supreme Court, the practitioner is required to advise the supervisor, team manager and liaise with the CPLO in relation to organising legal representation, at the earliest opportunity.

The child protection practitioner should thoroughly review and prepare the file in consultation with the CPLO in preparation for the appeal hearing.

Instituting an application to appeal a Children's Court decision

When the child protection practitioner believes that an appeal of a Children's Court decision may need to be considered, the practitioner is required to discuss this with the supervisor and team manager. The team manager will need to discuss the recommendation to appeal a decision with the divisional child protection operations manager, the divisional children protection director or the divisional assistant director child protection and the Director, Statutory and Forensic Services. Liaison needs to occur with the manager CPLO.

When considering the possibility of appealing a Children's Court decision the following should be taken into account:

  • What is the risk of harm to the child? Is it unacceptable and immediate, and if so, how?
  • Is the decision of the Children's Court:
    • unreasonable, in the sense that no court acquainted with the facts of the case could reasonably have reached the same decision
    • based on an irrelevant consideration, or does it fail to take into account a relevant consideration
    • a decision which was made without giving the Secretary a fair hearing, or was the Court, actually or apparently, biased
    • a decision which could only have been made if a particular matter was established, but no evidence or other material was presented from which the Court could reasonably be satisfied that the matter was established
    • a decision which was based on a fact or facts which did not exist.
  • Does the public interest justify the pursuit of an appeal by the Secretary?

Additional information

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