IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Practice Court DIARY
Judicial Review and Appeals List
S ECI 2020 02301  

RP	First Plaintiff	
		
- and - 		
		
VS	Second Plaintiff	
		
v  		
		
MARYANNE FOREMAN 	First Defendant	
		
- and - 		
		
EMILY MORVELL	Second Defendant	
		
- and - 		
		
THE DEPARTMENT OF HEALTH AND HUMAN SERVICES	Third Defendant	

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JUDGE:	Incerti J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	16 July 2020, 13 August 2020	
DATE OF RULING:	20 August 2020	
CASE MAY BE CITED AS:	RP & Anor v Foreman & Ors	
MEDIUM NEUTRAL CITATION:	[2020] VSC 522	

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APPLICATION FOR WRIT OF HABEAS CORPUS – Challenge to Family Reunification Order under Children, Youth and Families Act 2005 – Family Reunification Order not a nullity – Alternative remedies available – Application dismissed – Supreme Court (General Civil Procedure) Rules 2015 O 57 – Children, Youth and Families Act 2005 ss 274, 275, 289(1B), 304, 328, 329, 331, 333 and 515(1)(b) – PR v Department of Human Services [2007] VSC 338. 

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APPEARANCES:
	Counsel	Solicitors	
For the First Plaintiff	RP appeared in person 	Not applicable 	
			
For the Second Plaintiff 	VS appeared in person	Not applicable	
			
For the First Defendant 	No appearance 	Not applicable	
			
For the Second Defendant 	No appearance 	Not applicable	
			
For the Third Defendant	Ms Stephanie Clancy 	Department of Health and Human Services 	

HER HONOUR:
Introduction
1	This is an application by RP and VS (the ‘Plaintiffs’),  who are the mother and father of a 7 year old daughter (the ‘child’), against a Family Reunification Order (‘FRO’) made on 3 June 2019 pursuant to ss 275(1) and 287 of the Children, Youth and Families Act 2005 (‘the Act’). Their application is for a writ of habeas corpus ad subjiciendum (‘habeas corpus’) against the Department of Health and Human Services (‘the Department’) to remedy an allegedly unlawful detention of their daughter pursuant to Order 57 of the Supreme Court (General Procedure) Rules 2015 (‘the Rules’).
2	The FRO was made by Magistrate Smith following the contested hearing of the protection application, which was filed on 28 June 2018 by the Department in respect of the child. The Plaintiffs were parties to the protection application in the Children’s Court and participated in the contested hearing. They submitted that the child should be returned to their care and that the court should make no protection order.
3	The Plaintiffs are self-represented litigants. They initially filed an exhibit dated 18 May 2020, which set out their application. The document contained: 
(a)	an Application for Writ of Habeas Corpus outlining the key submissions of the Plaintiffs; and
(b)	an Affidavit of Facts with four attachments. 
4	Subsequently they filed a document dated 10 August 2020, containing a fresh application for writ of habeas corpus and other common law and equitable claims. In addition, the document contained an affidavit exhibiting supporting material for the various grounds relied upon. 

5	The Department relies on the affidavits of:  
(a)	Jenna Huson, Acting Team Manager in the Children Protection program at the Department, affirmed 13 July 2020; and 
(b)	Cailtin Simper, the Department’s solicitor,  affirmed 10 August 2020. 
6	The Department’s affidavits set out the procedural background to this matter in the Children’s Court. The Department also relies on written submissions dated 13 August 2020.
7	By way of background, on 28 June 2018, the Department filed and served a protection application at the Geelong Children’s Court in respect of the child pursuant to s 162(1) of the Act on the basis that she was a child in need of protection. Prior to the substantive protection application being heard, the next day on 29 June 2018, an Interim Accommodation Order (‘IAO’) was granted to the mother by Magistrate Lesser at the Geelong’s Children’s Court. 
8	On 2 August 2018, the Department served a Breach of IAO on the Plaintiffs. On the same day, an IAO was granted by Magistrate Lesser at the Geelong Children’s Court, placing the child in the care of her maternal grandmother. 
9	A contested hearing for the protection application proceeded on 23 and 24 May 2019 before Magistrate Smith at the Melbourne’s Children’s Court. Magistrate Smith refers to the supporting information she had regard to in her Reasons dated 3 June 2019. In  addition to the documentation, Magistrate Smith also heard evidence over two days from witnesses, including the father’s drug counsellor and previous Department workers.
10	On 3 June 2019, after a contested hearing, Magistrate Smith found the protection application proven and made an FRO in respect of the child, pursuant to ss 162(1), 275(1)(c) and 287 of the Act. The FRO was granted until 1 August 2019. The Plaintiffs were both parties to that proceeding. 
11	On 19 July 2019, the Department made an application for a Care by Secretary Order (‘CBSO’), and issued it in the Children’s Court on 22 July 2019. The Department provided an affidavit of service sworn by a practitioner that the application was served on the mother via registered post to her residence on 22 July 2019 at 12.15pm. This is only relevant to the extent that the mother claims that the she was only served the application on 5 August 2019. 
12	The application for the CBSO was supported by a Confidential Court Report (‘the Report’) prepared by an Advanced Child Protection Practitioner and the Team Manager. The Report raises serious concerns relating to: 
(a)	parental illicit substance use;  
(b)	the impact of family violence on the child; 
(c)	poor parental mental health; 
(d)	a lack of insight by the Plaintiffs as to identified protective concerns; and
(e)	and a failure of the Plaintiffs to comply with existing court ordered conditions under the FRO. 
13	The Report assessed the child as being at ‘significant risk of physical and emotional harm’ that she should not be returned to the care of either parent, due to the unaddressed issues listed above. It ultimately recommended that the child be placed on a CBSO for a period of 24 months. The case plan attached to the report, which applies to the child from 19 July 2019, has the permanency objective as ‘permanent care’. More specifically, it recommended that the Department seek a CBSO in relation to the child, with a view that she remain in ‘long term placement’ with the grandmother. 
14	I note that the application for the CBSO is contested by the Plaintiffs. 
15	The explanation for the delay in hearing the CBSO application is set out in the affidavit of Caitlin Simper at paragraphs [11] – [18]. In summary, the history of the CBSO application is that the hearing was initially listed at the Geelong Children’s Court on 12 September 2019, and on that day, it was referred to a Conciliation Conference for 22 October 2019. The Conciliation Conference proceeded, the parties were unable to agree, and the application for the CBSO was adjourned to 25 February 2020 for a directions hearing. 
16	At the mentions on 25 February, due to a jurisdictional issue raised by the First Plaintiff, a special mention on 1 May 2020 was listed for argument to be heard, and the application for the CBSO was listed for a final hearing on 22 June 2020. The Children’s Court did not have capacity to hear the special mention listed for 1 May 2020, and, pursuant to an Emergency Protocol issued by President Chambers of the Children’s Court, the contest hearing listed for 22 June 2020 was vacated and adjourned to a mentions on 6 August 2020. 
17	At the mentions on 6 August, the matter was stood down so that the Department could make inquiries to determine whether it could proceed as a Readiness Hearing at the Melbourne Children’s Court, which is a mechanism to explore the possible resolution of matters and the feasibility of remote contested hearings as introduced in the Children’s Court. Ms Simper for the Department deposes that she contacted the Children’s Court registry and was advised that the Melbourne Children’s Court did not have capacity to list the proceeding for a Readiness Hearing. 
18	The next return date for this matter in the Geelong Children’s Court was on 17 August 2020 for a mentions hearing. 
19	I first heard this matter in the Practice Court on 16 July 2020, and I adjourned it to 13 August 2020 to allow the Plaintiffs time to file additional material, and seek pro bono assistance. I made orders referring the Plaintiffs to the Victorian Bar Pro Bono Assistance Scheme. 
20	The child remains in the care of her maternal grandmother, where she has resided since the making of the IAO on 2 August 2018. 
Submissions
Plaintiffs’ Submissions 
21	In the initial application for habeas corpus dated 18 May 2020, the Plaintiffs set out three ‘claims for relief’, summarised as follows:
(a)	‘Statutory violations’ - the Plaintiffs submit that the ‘detention’ of the child is unlawful because the child has been detained under an invalid and subsequently expired FRO;
(b)	‘Procedural due process violations’ - the Plaintiffs claim that they have not been entitled to ‘procedural due process considerations’ by the Department; and
(c)	‘Substantive due process violations’ - the Plaintiffs assert a panoply of familial and personal rights that it is claimed the Department breached. 
22	In oral submissions on 16 July 2020, the Plaintiffs primarily framed their argument around the lack of a valid order in place for the child to be with the maternal grandmother, given the FRO expired on 1 August 2019. 
23	In the second application for a writ of habeas corpus dated 10 August 2020, the Plaintiffs challenge the FRO based on 7 grounds, with supporting facts and points of law for each ground. In addition to their writ for habeas corpus, the Plaintiffs also rely on the Magna Carta, the International Covenant on Civil and Political Rights and various other pieces of state and federal legislation. 
24	Despite the fresh application, when pressed in oral argument, the mother maintained that the main ground relied upon was the writ of habeas corpus. The remaining grounds said to be based in ‘common law’ and equity are on the whole  difficult to disentangle and lack any comprehensible legal basis. For example, the Plaintiffs make a wholesale attack on the jurisdiction of the Children’s Court to make the orders in this matter from 29 June 2018 to 1 June 2020.  In Ground 1, the Plaintiffs state:
Ground #1
The Children’s Court imposed orders that were outside of their authority and jurisdiction without and directly against the consent of the mother and father. They were denied the opportunity to be a voice for [the child] and the right to a fair and just trial in a court of competent jurisdiction despite being told to transfer the matter to a higher court.
Points of law
The Governor General of Victoria has confirmed that the Bill of Rights and parts of the Magna Carta dealing with justice and liberty are still in force in Victoria.
5.XXXIX Magna Carta 1215 No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed, nor will we pass upon him, nor condemn him, but by lawful judgement of his peers, or by the law of the land. We will [n]ot deny or defer to any man either justice or right. Magna Carta 1215.
This is also enshrined in 5.8 Division 2 - Habeas Corpus of the Acts Interpretation Act and is one of the few express personal rights protected in 5.80 of the Commonwealth of Australia Constitution Act 1901.
5.69J of the Family Law Act 1975 vests State and Territory courts with federal jurisdiction to make orders under part VII of the Family Law Act 1975 and 5.69N limits this power to circumstances where (a) the parties consent to the orders being sought or (b) where the parties consent to the Court of Summary Jurisdiction hearing and determining the matter.
The Family Law Act 1975 deals with 'matrimonial causes' i.e. children of ex-nuptial and/or ex-de facto relationships. [The child] is not within the scope of the Act as [RP and VS] were never married nor lived together de facto as defined by the Act.
25	I do not propose to go through the remaining grounds as they suffer from the same defects in that they are largely impenetrable and lack cogency.
26	The mother also sought a ‘declaration of rights’ in oral argument. The basis for any declaratory relief is unclear, but I understood her to mean a clarification of her rights and the rights of the Department in relation  to her child. 
27	Finally, and worryingly, the mother made a bizarre allegation that the Act is being amended on an ad-hoc basis, for the purpose of frustrating any legal claim and consequent remedy that she may have under the Act. 
Department’s Submissions 
28	In oral submissions in the initial hearing of this application on 16 July, counsel for the Department referred to s 289(1B) of the Act, which states that an existing protection order applying to a child at the date of a CBSO application (in this case, the FRO granted by Magistrate Smith) continue to remain in force until the application is determined. 
29	In the Department’s written submissions, they point to the statutory rights of review and appeal that were available to the Plaintiffs pursuant to ss 328 and 329 of the Act.  They submit that the Plaintiffs’ application for habeas corpus must be dismissed for two reasons: 
(a)	first, that none of the Plaintiffs’ grounds in their application provide a basis for concluding that Magistrate Smith’s FRO is a nullity, and in fact, pursuant to ss 515(1)(b) and 275 and of the Act, the Children’s Court is specifically vested with jurisdiction to determine protection applications and given the discretion to make a protection order if satisfied that a child is in need of protection. Given that s 289(1B) of the Act provides for a protection order that applies to a child on the date that a CBSO application is made, and is to continue in force until the application is determined, it is submitted that this means that the FRO is valid on its face; and 
(b)	second, relying on PR v Department of Human Services (‘PR’), that a writ of habeas corpus is not appropriate where there are alternative avenues in statute to challenge the lawfulness of the FRO. 
30	The Department, in response to the Plaintiffs’ request for the Court to grant other ‘legal or equitable remedy’, point to the Plaintiffs being given legal advice (which they declined to follow) to put forward a more appropriate application, that is, in respect of an appeal under statute or an originating motion seeking judicial review. 
Analysis 
31	The relevant legislative provisions governing protection orders are set out in the Department’s written submission and are also canvassed in the analysis below. Broadly speaking, these are found at Division 3 of Part 4.9 of the Act. 
32	Order 57 of Rules sets out a two stage process for an application for the writ of habeas corpus, requiring:
(a)	the party seeking the writ to show probable cause to consider that the impugned detention may be unlawful; and 
(b)	the defendant to show that the detention is lawful. 
33	In PR, the Department accepted that a writ of habeas corpus might be a basis to challenge a Custody to Secretary Order. For the writ to be granted, ‘it must be shown that there is no warrant for the detention complained of or that the warrant is a nullity.’ 
34	While the Plaintiffs are correct that a writ of habeas corpus may be issued on a basis where the Department has no lawful basis for taking ‘custody or control’ of a child, there are fundamental issues with the Plaintiffs’ application for habeas corpus in this case. 
35	First, and perhaps most importantly for this case, the Plaintiffs have not demonstrated any error of law to vitiate the FRO granted by her Honour Magistrate Smith on 3 June 2019, or any basis for this Court to conclude that there is no valid protection order in force for the child, which is the necessary under Order 57 of the Rules for the writ of habeas corpus to be granted. 
36	The Family Division of the Children’s Court is vested with jurisdiction to hear and determine whether or not a child is in need of protection pursuant to s 515(1)(b) of the Act. Under ss 274 and 275, the Children’s Court make protection orders, which include FROs, if it finds that the child is in need of protection. Magistrate Smith determined on the evidence before her that the child was in need of protection, and granted the FRO, conferring parental responsibility for the child and responsibility for her sole care on the Secretary to the Department (the ‘Secretary’). Magistrate Smith’s reasons for making the FRO clearly and cogently explain the reasons for making that determination, including family violence, parental mental health and parental drug use. The FRO was ordered to be in force between 3 June 2019 until 1 August 2019. 
37	At the date that the CBSO application was made by the Department (22 July 2019), this FRO remained in force. This is important because s 289(1B) of the Act provides for a protection order that applies to a child on the date of a CBSO application to continue in force until the application is determined. The application has not been determined and was scheduled for a mentions at the Children’s Court on 17 August 2020. 
38	The clear jurisdiction that the Children’s Court has to determine that a child is in need of protection and consequently make protection orders, and the FRO expressly conferring parental responsibility and sole care of the child on the Secretary, and the clear reasons of Magistrate Smith explaining why the FRO was made, all lead me to the unavoidable and obvious conclusion that the FRO was validly made, according to the requirements in the Act, and is therefore not a nullity or beyond power. As stated succinctly in the cases of Re Officer In Charge of Cells, ACT Supreme Court; Ex parte Eastman and PR, this case is one where I find that ‘[t]here is nothing at all in the material before me which provides an arguable basis for a finding that the order made by [the magistrate] was vitiated by absence or excess of jurisdiction or is otherwise void.’
39	In these circumstances, for this Court to issue a writ of habeas corpus would not only be clearly inconsistent with a valid order of the Children’s Court, it would, as submitted by counsel for the Department, undermine the operation of the Act which has been expressly crafted with the best interests of the child as a paramount consideration. 
40	Second, it is well established that relief by way of prerogative writ should not issue where there exists an alternative and more appropriate remedy, such as a right of appeal in the relevant statute. In PR, Osborne J relevantly held that:
habeas corpus should not go when the ultimate question in issue is the best interests of the child, and there exists a statutory right to re-agitate this question before a special jurisdiction charged by Parliament with judging this very issue.
41	There are statutory rights available to the Plaintiffs under the Act to appeal, including under: 
(a)	s 304 the Plaintiffs may apply to the Children’s Court for the FRO to be revoked; 
(b)	s 328(1)(a) the Plaintiffs may appeal the FRO to the County Court; and 
(c)	s 329(1) the Plaintiffs may appeal to the Supreme Court, on a question of law, from a final order of the Children’s Court in that proceeding. This includes the FRO in operation in this case, or, if a CBSO is subsequently ordered by the Children’s Court on final hearing of the application. 
42	In addition to these appeal processes available to the Plaintiffs, there are review mechanisms available to the Plaintiffs for the status of the FRO to be determined. For instance: 
(a)	s 331 of the Act imposes an obligation on the Secretary to prepare and implement review procedures for decision-making processes following the making of a protection order, including the FRO in effect in this case. Section 331(1) requires that a copy of these procedures together with a case plan be provided to the Plaintiffs; and 
(b)	s 333 of the Act empowers a child or parent to apply to VCAT for review of a decision contained in a case plan, or any decision made by the Secretary concerning the child.
43	Therefore, even if the grounds for a writ of habeas corpus were proven, the Plaintiffs’ choice not to invoke their rights of appeal or review under the Act, or to seek judicial review pursuant to Order 56 of the Rules, where such remedies were (and still are) available, would be grounds for this Court to decline to exercise its discretion to issue the writ of habeas corpus. 
44	Third, a writ of habeas corpus does not provide a remedy by way of judicial review, and is usually ill-suited as a basis for courts to  inquire into administrative law grounds of review or a collateral attack on the judicial exercise of discretion which are traditionally the domain of judicial review proceedings. Rather, a writ of habeas corpus is a mechanism for summary determination focussed on whether the detention of the child is unlawful. Therefore, to the extent that the grounds of review relied upon by the Plaintiffs traverse into procedural fairness territory, rights under the Charter, or other provisions not directly relevant to the Children’s Court’s powers to grant protection orders, these grounds are plainly not appropriate and are irrelevant to establishing whether a writ of habeas corpus should issue.
45	I accept that the Plaintiffs feel genuinely concerned for the wellbeing of their child and aggrieved at the various delays in hearing the application for the CBSO, filed over a year ago. I make no criticism of the Children’s Court for this; the delays are simply another collateral effect of the COVID-19 pandemic that has affected all levels of our society, including our legal system. However, this does not change the fact that there are other avenues of redress available to the Plaintiffs, and that their legal arguments are not appropriate and are futile, for the reasons I have explained above. 
Conclusion 
46	Given the reasons above, I must dismiss the Plaintiffs’ application for a writ of habeas corpus. 
47	If any party seeks costs, I will receive written submissions as to why they should  receive costs in writing and deal with it on the papers.