Aboriginal Children Returned to Care of Maternal Grandmother as Court Finds Charter Applies to Child Welfare Proceedings

Secretary to the Department of Human Services v Sanding [2011] VSC 42 (22 February 2011) Summary

The Supreme Court of Victoria has ruled that the Children’s Court of Victoria (‘Court’) had the discretion to make orders returning four Aboriginal children to the care of their maternal grandmother at a submissions contest hearing in which no formal evidence was given. The Supreme Court further held that a child welfare proceeding is a ‘civil proceeding’ to which the Charter of Human Rights applies.


Four Aboriginal children had spent many years living with their mother in the home of their maternal grandparents. The grandmother was the primary caregiver to the children. Their mother was addicted to drugs and, in the past, her behaviour had made the household violent and unsafe for the children. The Department of Human Services (‘DHS’) had been involved with the family for some time and eventually obtained a ‘custody to Secretary’ order from the Court, an order available under the Children, Youth and Families Act 2005 (‘Act’) that grants sole custody of children to the Secretary of the DHS. The Secretary decided to place the children in out-of-home care. No relatives were able to take the children, there were no Aboriginal families available and the children had to be separated and placed in different homes.

After moving out of the grandmother’s home, the mother applied to have the order revoked and the children placed in the care of their grandmother. After hearing from the parties at the first mention hearing, the magistrate revoked the custody to Secretary orders and made interim accommodation orders returning the children to the care of the grandmother provided that certain conditions were complied with and pending further consideration of the matter by the court in six weeks. The Secretary applied for judicial review of this decision on the basis that the magistrate erred in law because:

  • he failed to hear formal evidence before revoking the custody to Secretary order as required under the Act; and
  • there was not sufficient material in the submissions by the parties’ legal representatives for the determination of the application.


Bell J considered each ground of appeal separately.

Court’s failure to hear formal evidence

Bell J found that the Act gives the Court a wide discretion as to the procedure it could adopt in child protection proceedings. Under the Act, the Court is required to conduct proceedings informally and despite any rules of evidence to the contrary, the Court is permitted to inform itself as it sees fit. This enables the Court to conduct proceedings in a flexible manner without regard to legal forms provided that the information it acts upon is sufficiently reliable and probative to form a proper basis for its decision. The Court’s exercise of its procedural powers is qualified only by what is in the best interest of the child, the principles of natural justice and the right to a fair hearing under section 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’).

The Secretary specifically argued that the children were not afforded a fair hearing in front of the magistrate because they did not give any evidence. Bell J held that although it was important to hear the views of the child involved in protection proceedings, no particular means of affording such a fair hearing were stipulated in the Act. What is required to afford a fair hearing to a child in protection proceedings will depend on the capacity of the child, the nature of the proceeding, the issues at stake and the circumstances of the case. Bell J concluded that, in the present case, the views of the children who were mature enough to express an opinion on the issue were evident from the information before the Court and the magistrate knew that the revocation of the custody to Secretary order was in accordance with their wishes.

Bell J concluded that although it was highly unusual for a magistrate of the Court to make a revocation order during a submissions contest hearing, it was within the ambit of the Court’s discretion. The rules of natural justice and the Charter did not operate to impose the requirement that the Court had to hear some formal evidence before it made a determination on the revocation application. The rules of natural justice and the human right to a fair hearing required that the Court adopt procedures which were appropriate in the circumstances, having regard to the best interests of the child and a balanced consideration of other interests.

Was there sufficient material before the Court for the determination of the application?

Bell J stated that he was required to give considerable weight to the decision at first instance because it was made by a specialist court with experience in matters of child welfare. In this instance, that court had determined that the discharge of its functions would be best served by utilising a submissions contest procedure. Bell J concluded that he would only interfere in the decision of the magistrate if he had acted in a way that was legally unreasonable, that breached the rights of the parties to procedural fairness or their human rights or otherwise represented an unjustified departure from the fundamental standards of justice required of a court. This was not the case in the proceedings before the magistrate.

In a case where there was no serious dispute about the facts, there was a considerable amount of information before the Court, and a new and important consideration had arisen since the custody to Secretary order had been granted: the mother had moved out of the grandmother’s house. Bell J concluded that it was open for the magistrate to determine that it was in the best interests of the child to revoke the custody to Secretary order and place the children back in the care of the grandmother on certain conditions.

Relevance to the Victorian Charter

The applicability of the section 24 of the Charter to child welfare proceedings was clarified in this case. Proceedings involving child welfare are not usually characterised as “civil proceedings”, but as statutory proceedings for the best interests of the child, similar to the common law parens patriae jurisdiction. Under the Charter, the right to a fair hearing is only applicable to defendants in criminal proceedings or a “party to a civil proceeding”. Consistent with the approach taken by courts in the United Kingdom, Bell J concluded that the phrase “civil proceeding” in the Charter was to be read broadly and included protection proceedings in the Court and other “special” proceedings. Further, His Honour concluded that the children, their mother, their grandmother and the Secretary were parties to the proceeding.

Bell J also found that the Court was required to consider the children’s rights under the Charter when it was considering their best interests under the Act. These included the protection of the family as the fundamental group unit in society (section 17(1)), the right to such protection as was in their best interests and was needed by them as children (section 17(2)) and their cultural rights as Aboriginal children (section 19(1) and (2)). Bell J found that the magistrate’s took these factors into account.

The decision is at http://www.austlii.edu.au/au/cases/vic/VSC/2011/42.html.

Meg O’Brien is a lawyer with Mallesons Stephen Jaques on secondment to the Human Rights Law Centre