VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	vcat reference No. Z593/2022
	
CATCHWORDS	
Review and Regulation List – application for review of case plan decision – application to strike out application – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 75(1)(a) – Children Youth and Families Act 2005 (Vic) ss 333(1) and 168 – application dismissed because misconceived and lacking in substance.	

APPLICANT	ZIB	
RESPONDENT	The Secretary, Department of Families, Fairness and Housing	
WHERE HELD	Melbourne	
BEFORE	Member R Daly	
HEARING TYPE	Videoconference	
DATE OF HEARING	12 February 2024	
DATE OF ORDER	12 February 2024  	
DATE OF REASONS	27 March 2024	
CITATION	ZIB v Secretary, Department of Families, Fairness and Housing (Review and Regulation) [2024] VCAT 283	

Order

1	The proceeding is dismissed under s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) as misconceived and lacking in substance.

MEMBER R DALY			

APPEARANCES:		
For ZIB 	In person	
For the Secretary	Ms Frawley, counsel 	
Reasons
1	On 15 August 2022, ZIB applied under s 333 of the Children, Youth and Families Act 2005 (Vic) (‘CYF Act’) to VCAT for review of a Case Plan decision of the Secretary, Department of Families, Fairness and Housing (‘the Secretary’) made on 29 July 2022 in relation to ZIB’s child.
2	On 5 May 2023, the Secretary sought an order under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) that ZIB’s application for review be struck out.
3	Section 75 of the VCAT Act says:
(1)	At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part of a proceeding that, in its opinion-
(a)	Is frivolous, vexatious, misconceived or lacking in substance; or
(b)	Is otherwise an abuse or process. 
4	The s 75 hearing proceeded on 12 February 2024.
Background
5	Following a report made to the Secretary in June 2018 regarding ZIB’s pregnant partner, the Secretary investigated whether the unborn infant needed protection. After the birth of ZIB’s son on 26 September 2018 the Secretary immediately applied for and obtained a Protection order from the Childrens Court. ZIB’s infant son was placed in the care of an approved home-based carer whilst ZIB and the mother were able to have supervised contact with the child whilst undergoing parenting assessment.
6	The Secretary issued a case plan on 9 December 2020 (‘the first Case Plan decision’) in which it expressed significant protective concerns in relation to the child, including ZIB’s significant history of violence, family violence, substance use and mental health issues. The Secretary determined that it was in the best interests of the child that he is not reunified with the parents, and he be placed in long term care until the child reaches 18.
7	On 23 January 2022, ZIB applied to the Secretary for review of the first Case Plan decision.
8	On 25 May 2022, the Children’s Court made a Custody to Secretary Order which is due to expire on 24 May 2024.
9	On 29 July 2022, the Secretary’s delegated reviewer decided that the first Case Plan decision be suspended for six months. This decision was confirmed by the Secretary on 26 August 2022 and was to be reviewed by 29 January 2023 (‘the second Case Plan decision’). The Secretary stated that the rationale for suspending the first Case Plan decision was to enable the Secretary to carry out an assessment of ZIB’s parenting capacity whilst the child is placed under the care of ZIB’s parents. 
10	On 15 August 2022, ZIB applied to VCAT under s 333 of the CYF Act. ZIB’s application stated:
This particular application is being made due to the departments refusal to allow me to be involved in a 331 review that was submitted in December last year.
11	The application stated that the date of decision under review is 29 July 2022, and that the applicant is applying for a stay of the decision. The 29 July 2022 decision is the date of the second Case Plan decision. The application further states: 
My reasons for seeking the stay are that the director refused to allow me to be involved in this review despite multiple requests to do so, this review contains decisions that are impossible under the departments current plan of how they treat me.
12	The matter came before the Tribunal for directions hearing on 22 November 2022 and 23 January 2023 and the matter was adjourned to allow ZIB to better describe reasons for his application for review.
13	On 19 March 2023, ZIB sent an email to the Tribunal and the Secretary setting out the following reasons for seeking review. First, that the Secretary refused to carry out the parenting assessment that it was required to do as part of the second Case Plan decision. Second, that the communications plan provided by the Secretary limited ZIB’s ability to participate in the assessment. Third, that ZIB has been denied contact with the child despite his requests for same. Finally, that despite making complaints, ZIB’s complaints have not been responded to by the Secretary.
14	At the hearing on 12 February 2024, ZIB stated that he was not seeking a review of the second Case Plan decision. Rather he was seeking a review of the first Case Plan decision. He explained that he was supportive of the Secretary’s decision to suspend the first Case Plan decision. However, ZIB said that the Secretary has made changes to the first and second Case Plan decisions and he has applied for review of the Secretary’s subsequent decisions.
15	ZIB said he has not had any contact with his son for at least eight months and the Secretary has failed to carry out any of the assessments it was required to regarding his parenting capacity.
Law
16	Under s 333(1)(a) of the CYF Act, a child or a child’s parent may apply to VCAT for review of a decision contained in a case plan prepared in respect of the child under s 168, or any other decision made by the Department concerning the child.
17	The application to VCAT may only be made if all available avenues for review within the Department have been conducted (s 333(3) of the CYF Act) and must be made within 28 days of the decision that is sought to be reviewed (including any internal review decision) (s 333(2) of the CYF Act).
18	In determining a proceeding for review of a decision, the Tribunal may, by order, affirm the decision, vary the decision, set-aside and substitute the decision or set-aside the decision and remit the matter for re-consideration by the decision maker (s 51(2) of the VCAT Act). The Tribunal may also make a declaration concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it could make: s 124(1) of the VCAT Act.
Secretary’s application under s 75(1)
19	The discretion to strike out or summarily dismiss an application, is one that the Tribunal does not exercise lightly. It is a serious matter to prevent an applicant from having their case fully heard and litigated, and the Tribunal must have a higher degree of satisfaction than the mere balance of probabilities that the case of the applicant, in this case the father, is destined to fail.
20	Where an application is made to dismiss or strike out all or part of a proceeding that applicant (here the Secretary) bears the onus of establishing that VCAT should exercise its discretion. In discharging that onus, the Secretary must show that the proceeding is clearly hopeless and there is no question to be tried.
The Secretary’s submissions
21	In support of its application to strike out ZIB’s application for review, the Secretary filed written submissions on 9 June 2023 titled summary of argument. At that time the Secretary submitted that “it remains unclear what case plan decision of the Secretary formed the basis of the applicant’s application for review”.
22	The Secretary submitted that many of the matters ZIB raises are relevant to the implementation of the decision which post-date the application for review.
23	At the hearing of the application for review on 12 February 2024, Ms Frawley of counsel submitted that whether ZIB is seeking review of the first or the second Case Plan decisions, due to the elapse of time, a subsequent Case Plan decision has been made by the Secretary. 
24	Ms Frawley said the Secretary attempted to hold a case plan meeting with ZIB on 18 May 2023, but the meeting did not proceed because ZIB objected to the person who was chairing the meeting.
25	On 30 May 2023 Ms Frawley said the Secretary decided that it was in the best interests of the child to arrange a permanent placement for the child with permanent care parents (‘the third Case Plan decision’).
26	Ms Frawley said ZIB has applied to the Secretary for review of the third case plan decision. She said the decision is being reviewed by an independent third party and is unlikely to be determined until March 2024. 
27	Ms Frawley referred to the VCAT decision of QQQ v the Department of Families, Fairness and Housing which also involved an application for review of a case plan decision in which Deputy President Judge Hampel said:
By the time the matter came on for hearing before me, the time for seeking review of the decision the applicant wanted to challenge… was long expired, the decision itself was no longer operative. In those circumstances, the futility of challenging a decision no longer 	operative would weigh heavily in determining whether to extend the 	time for making application for review.
28	Ms Frawley submitted that ZIB’s application for review should be struck out because it is misconceived and lacking in substance. Ms Frawley said the first and second Case Plan decisions are no longer operational because they have been superseded by the third Case Plan decision and therefore there is no utility in reviewing the decisions. 
29	ZIB conceded that the first Case Plan decision had been overridden by the most recent decision of the Secretary to place his son in permanent care. He said he was frustrated that he was not given the opportunity to have his parenting capacity properly assessed. ZIP also said he was frustrated by the delays in waiting for the Secretary to respond to his latest application for review.
Analysis and decision
30	In my view, the application for review of the first and second Case Plan decisions is misconceived and lacking in substance because it is now futile to carry out a review. Neither of the decisions continue to have any operative effect. They have been overtaken by subsequent events as the Secretary submitted and which is conceded by ZIB.
31	ZIB has made a fresh application for review of the third Case Plan decision which is being investigated by a third party and awaiting decision.
32	As the QQQ decision made clear, the review jurisdiction of VCAT is to conduct a review on the merits of decisions which affect a person’s interests; and there is no utility in reviewing decisions that no longer have any force or effect, or those that have been overtaken by subsequent events, and such application is lacking in substance. Further as Member Campana noted in the VCAT decision of FOI v The Secretary to the Department of Families, Fairness and Housing “it is not the role of the Tribunal and nor should the Tribunal’s resources be expended on such a futile exercise. Such an application is misconceived”.
33	For the reasons stated above, the application for review is dismissed under s 75 of the VCAT Act as misconceived and lacking in substance.

MEMBER R DALY