TP Legal’s Second Supreme Court Appearance

Shortly after our first Supreme Court case, our team was involved in yet another important Supreme Court decision. As the majority of law firms don’t get an opportunity to go to the Supreme Court, this was almost unprecedented and shows how serious we take the rights of children.

In AA v DFFH & Ors [2020] VSC 400, we acted for the father in the proceedings. The children involved were 3 and 5 years old when they were initially placed in the care of their maternal grandparents. On 15 November 2019 the children were placed in Care by Secretary Orders (CBSOs), remaining in the care of their grandparents with guardianship rights placed upon DFFH.

DFFH Makes Its Own Internal Decision

On 6 January 2020 an internal review was held by the Department of Families, Fairness and Housing (DFFH) and a decision was made to convert the existing CBSO to a Family Preservation Order (FPO). A FPO confers all parental rights and responsibilities on the parent. DFFH enacted this decision via its own internal administrative process, and under the new order the children were promptly returned to the care of our client on 20 January 2020.

The children’s grandparents then sought an internal review of this decision, which resulted in the DFFH Assistant Director of the Brimbank-Melton area disagreeing with the decision made by its colleagues at DFFH. This disagreement caused the children to be removed (again) from the care of their father on 6 May 2020, and without any prior notice to our client. The children were placed back into the care of their grandparents. Therefore, the children were removed despite there being an existing FPO to our client; an FPO initiated and enacted by DFFH themselves.

TP Legal & Associates Challenges DFFH

Our law firm sought a Judicial Review of this decision-making process on behalf of our client by filing an application in the Supreme Court.

The Supreme Court focused on the jurisdictional errors made in the above decision-making process by DFFH and determined the following:

  • The process of converting the existing CBSO to a FPO based on an internal review was incorrect.
  • Therefore, the CBSO made on 15 November 2019 remained in force.
  • The process of deciding if the CBSO remained in force or not and subsequent removal of the children while an existing FPO was still in effect was defunct. More importantly, it was emphasised that the authority to make such life-altering decisions without the oversight of a judicial body such as the Children’s or Supreme Court placed far too much power with DFFH.
  • The decision-making process was also found to be contrary to both the father’s and maternal grandparents’ rights to procedural fairness.
  • The decision made by the Supreme Court relied on The United Nations Convention on the Rights of the Child and recognised the actions of DFFH contravened this convention. Specifically, children are to be recognised as independent persons with their own integrity and human rights. When DFFH make decisions, these rights must be adhered to. In this case, the consequences of the decisions made by DFFH can be said to have contravened these rights by causing significant and unnecessary distress to the children by shuffling them from one placement to another under invalid authority.

A Landmark Decision Supporting Families & Children

Given the actions of DFFH, costs were awarded to both our client and the maternal grandparents. Even though the court’s judgement did not go in favour of our client, it was still an important decision to argue as it established the parameters of the decision-making power of DFFH. Our challenges in the Supreme Court ultimately resulted in clarifying the internal review process, DFFH conduct, and the impact this has on families and children.

While we were unable to keep the children with our client under an FPO, we were able to assist the trajectory of many other cases as a result of this landmark decision.

At TP Legal and Associates we are very proud to have been involved in such an important ruling around the decision-making powers of DFFH. Our skills and expertise provided us with the confidence required to successfully challenge the DFFH decision-making process.