Appeals - advice

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

Document ID number 2226, version 3,15 June 2018.

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 (when sitting in the Children’s Court) are not binding on other members of the judiciary, though in practice are often persuasive. In contrast, decisions of the Supreme Court or the County Court are binding on the Children's Court.

Time constraints apply to most appeals and judicial reviews, depending on the court and type of appeal that is instituted. The Child Protection Litigation Office (CPLO) is the instructing solicitor in appeal matters and provides advice in relation to compliance with appeal timeframes.

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

Considering initiating 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 and the Chief Practitioner, Office of Professional Practice. Liaison needs to occur with the Assistant Director, Families and Children, Legal Services Branch /Manager CPLO.

  • The decision to seek an appeal should always consider the best interests of the child. 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?
  • Can the risk be managed through compliance with the conditions on the order, case work, or engagement of supports and services?
  • 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?

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 that weight should be accorded to the decision of the Children’s Court. Therefore, to persuade the Supreme Court to make a different order, the department generally needs to be able to demonstrate the urgency of the circumstances requiring a different order being made and to have compelling evidence of the immediate risk to the child. IAO appeals are often 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 the department holds well-founded protective concerns for the immediate safety of the child, and believes the decision of the Children’s Court exposes the child to unacceptable risk of harm, then an appeal should be considered.

In considering the prospects of success of an appeal it will be relevant to consider the following factors:

  • What evidence does the department have to establish its case?
  • How strong or reliable is that evidence? Is there contradictory evidence or information that needs to be considered?
  • What evidence was put before the Children’s Court by the department and by the other parties?
  • What were the Magistrate’s reasons for making the decision?
  • Was there any error of law made by the Magistrate? For example, did the Magistrate afford all of the parties, including the department, a fair hearing; did the Magistrate take into account all relevant considerations or rely on an irrelevant consideration?
  • What are the strengths and weaknesses of the department’s desired outcome?
  • Is it possible to work with the family on the terms of the orders made by the Court?
  • How long before the matter is listed to return for further hearing in the Children’s Court?

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 to ensure the safety and protection of a vulnerable child in circumstances in which the order made by the Children's Court 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 department can work with the family and support services within the parameters of the decision of the Children's Court.

Appeal of an interim accommodation order

Section 271 of the Children, Youth and Families Act 2005 (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 immediate 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 Chief Practitioner, Office of Professional Practice, Legal Services Branch (Assistant Director, Families and Children) and the legal representative who appeared for child protection on the day. 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.

In many instances, intensive case work and monitoring of the family will be preferable to an urgent appeal to the Supreme Court. Thereafter, if the family do not engage or there are new facts and circumstances, the matter can then be brought back before the Children’s Court on an application for a new IAO or a breach application by emergency care.

Consideration should also be given to listing the matter for an IAO contest by evidence, as the department might be more likely to persuade the Court of the protective concerns through the giving of sworn evidence as opposed to submissions from the lawyers. However, if the child protection assessment is that the risk to the child is immediate and unacceptable, and cannot be ameliorated through the conditions on the IAO and the department’s supervision of the family, then urgent consultation with CPLO should be pursued in relation to an appeal.

Additional intensive case work or monitoring conditions need to be reasonable, practicable and sustainable for the duration of the order. Concerns about conditions should be discussed with CPLO at the earliest opportunity.

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 impinge 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.

This appeal provision follows the making of a final protection order – either by consent or following a contested hearing – and is predominantly utilised by parents and not by the Secretary. Should child protection be significantly concerned about the possible outcomes of a contested hearing, these concerns need to be raised with the department’s legal representative and CPLO at the earliest possible opportunity.

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. Hearings ‘de novo’ may also be heard in the Supreme Court where the President of the Children’s Court makes (or does not make) a final order.

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 provides 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)

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.

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 of the 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.

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