VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. Z502/2019	

APPLICANT	SPO	
RESPONDENT	The Secretary, Department of Families, Fairness and Housing	
WHERE HELD	Melbourne	
BEFORE	Judge Jenkins, Senior Member	
HEARING TYPE	Hearing on the papers	
DATE OF HEARING	13 December 2022	
citation	SPO v The Secretary, Department of Families, Fairness and Housing (Review and Regulation) [2022] VCAT 1432	

ORDERS
1	The Application and Proceeding No. Z502/2019 is dismissed under s 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998.

Judge Jenkins 
Senior Member

TABLE OF Contents
ORDERS
TABLE OF Contents
REASONS
Nature of application
Order sought by Respondent
Background
Jurisdiction of the Tribunal
Grounds for dismissing the application
Conclusion

REASONS
Nature of application
1	By application to the Tribunal, dated 20 June 2019 (the Application), the Applicant applied under s 333(1)(a) of the Children Youth and Families Act 2005 (CYF Act) for review of a decision of the Respondent dated 6 June 2019, following an internal review requested by the Applicant and conducted under s 331 of the CYF Act. 
2	The internal review conducted on behalf of the Respondent related to a child protection decision regarding the Applicant’s daughter (the Child) and a non-reunification case plan and contact arrangements for the Child.
3	Since the filing of the Application for review with the Tribunal, there have been several directions hearings and administrative mentions as well as a period during which the proceeding was required to be stayed when the Tribunal closed its venue to the public in response to the COVID 19 transmission.
4	In addition, there have been ongoing assessments of the Applicant and the Child and separate proceedings and orders made by the Children’s Court of Victoria (CCV).
Order sought by Respondent 
5	The Respondent now seeks an order under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) that the Application be dismissed on the following grounds, namely that:
a.	There is no longer an operative case plan to review; and
b.	Even if the Applicant’s Application is successful, the Tribunal has no power to revoke or vary the Permanent Care Order (PCO) made by the CCV on 29 April 2022 and the contact condition attaching to that PCO. 
background
6	The Tribunal has examined the contents of the Tribunal Book and other documents filed with the Tribunal.
7	The Tribunal refers to the written submissions dated 16 September 2022 prepared by Counsel for the Respondent setting out the relevant chronology, events, law, and authorities. The Tribunal accepts these submissions and incorporates relevant extracts below.
8	On 12 September 2016, pursuant to Division 2 of Part 4.8 of the CYF Act, the Respondent made a protection application to the CCV for a protection order in respect of the Child, placing her into emergency care. 
9	On 17 August 2017, the Respondent made a non-reunification case plan decision for the Child. 
10	On 29 August 2018, following a five-day contested hearing, at which the Applicant was legally represented, the CCV made a Care By Secretary Order (CBSO) for a period of 24 months and found that the Respondent’s application had been proved on the grounds that the Child: 
a.	was likely to suffer significant harm as a result of physical injury and that the Applicant was unlikely to protect her from harm of that type; 
b.	was likely to suffer emotional or psychological harm of such a kind that her emotional or intellectual development is likely to be significantly damaged and that the Applicant was unlikely to protect her from harm of that type; and
c.	has actually suffered physical development harm and the Applicant had not provided, arranged or allowed the provision of basic care or effective medical, surgical or other remedial care. 
11	On 8 October 2018, the Applicant filed an application with the CCV to revoke the CBSO. 
12	On 1 February 2019, the Applicant formally requested that the Respondent conduct an internal review of the case plan for the Child. In particular, the Applicant sought an increase in her contact with the Child, a review of the non-reunification aspect of the case plan and the goals she was required to meet to address any outstanding protective concerns. 
13	On 13 March 2019, the Applicant withdrew her application to revoke the CBSO and an order was made to strike her application out at the CCV. 
14	By letter dated 5 June 2019, the Respondent informed the Applicant, with reasons, that the case plan under internal review was upheld (the Reviewable Decision). 
15	On 20 June 2019, the Applicant filed the Application with the Tribunal to review the Reviewable Decision. 
16	On 29 April 2022, following a three-day contested hearing whereby evidence was called, and the Applicant was unrepresented, the CCV made a PCO in relation to the Child. As part of the PCO, the CCV made a condition that the Applicant may have supervised contact with the Child four times per year at times and places as agreed between the Applicant and the carers; and that the Respondent or Nominee will supervise such contact unless the Respondent assesses that supervision is not necessary.
17	A PCO is made under s 321 of the CYF Act and vests full parental responsibility in the named carers. Parental responsibility is defined in s 3 of the CYF Act as “all the duties, powers, responsibilities and authority which, by law or custom, parents have in relation to children.” 
18	The CYF Act does not authorise or require the Secretary to make a case plan for a child who is not the subject of a protection order. Therefore, once a PCO is made, which is not a protection order, there is no case plan for a child. Once a PCO has been made, it replaces, or extinguishes any protection order which was previously in force. If there is no protection order in force, the Secretary has no legislative warrant to make or administer a case plan for a child. To do so would be an unauthorised interference in, or usurpation of the duties, powers, responsibilities and authority of a person who has, by law, full parental responsibility for a child. 
19	The Applicant made an application to the CCV to revoke the PCO which was listed and heard on 16 June 2022 and dismissed by the CCV. 
20	At the Directions hearing before the Tribunal on 28 July 2022, the Tribunal noted in its Findings that:
(c) 	SPO has clarified that the scope of her application to the Tribunal is to have more contact with the child than the Children’s Court order allows, and in the future, to be reunited with the child.
jurisdiction of the tribunal
21	So far as it is relevant to the current Application:
a.	under s 333(1) of the CYF Act, a child or the parent of a child may apply to the Tribunal for review of a decision contained in a case plan, prepared in respect of the child under s 168 of the CYF Act, or any other decision made by the Secretary concerning the child; and
b.	under s 333(2) of the CYF Act, an application for review must be made within 28 days of the date on which the decision is made.
22	Section 75(1) of the VCAT Act states that:
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 of process. 
23	The Respondent bears the onus of establishing that the Tribunal should exercise its discretion to summarily dismiss a proceeding. 
24	The Tribunal will not exercise its discretion to dismiss unless satisfied that the proceeding is obviously hopeless, unsustainable in fact or in law, can on no reasonable view justify relief, or must be bound to fail. 
25	The Respondent’s Counsel referred to a decision of Vice President Judge Hampel which is directly applicable. In VLY v Department of Health and Human Services, the applicant sought review of a permanent care case plan which application was filed on 29 January 2018. In April 2018, the Secretary filed an application for a PCO in the CCV. On 9 August 2018, the CCV made a PCO. The making of the PCO formed the basis of the Secretary’s application to dismiss the proceeding in the Tribunal. Her Honour Judge Hampel was initially concerned that:
… the process for review of the case plan might have been unfairly or improperly circumvented by the making of the permanent care application whilst the review was pending.  …
26	However, following review of the legislative scheme set out under the CYF Act and evidence of extensive dealings between the applicant and Respondent since the child’s birth, her Honour was satisfied that this concern was baseless. While her Honour was satisfied that the case plan ceased to have any operative effect once the PCO was made, she was further satisfied that there had been no impropriety on behalf of the Secretary. Her Honour Judge Hampel accepted the Secretary’s submissions that, as there was no longer an operative case plan, the application before the Tribunal was lacking in substance and the proceeding before the Tribunal was futile. In relation to the Tribunal’s powers to review the case plan in the circumstances, her Honour stated as follows:
It is clear that there is no longer any operative case plan. It is as Mr Bruno correctly submitted, historic. It no longer impacts the rights and interests of the applicant or the child. In Yolbir v Administrative Appeals Tribunal [1994] FCA 910; (1994) 33 ALD 8, the Full Federal Court confirmed a line of authority which defined the review jurisdiction of a tribunal, as one which conducted a review on the merits of decisions which affect a person’s interest. I am satisfied that principle applies equally to this Tribunal. It follows that as the rights and interests of VLY are no longer affected by the care plan, the application is now lacking in substance.
As the Secretary no longer has any authority to make a case plan, and as the case plan has ceased to have any effect, no effective orders can be made in respect of it under ss 51(2) or (3). Any decision affirming, varying or setting aside the decision under review and making another decision in substitution for it could have no effect. There is no utility in setting aside the case plan and directing the Secretary to reconsider it. No case plan can operate into the future because it has been superseded. There is no utility in the Tribunal retrospectively affirming or varying the case plan or substituting a case plan for that made by the Secretary.
Grounds for dismissing the application  
27	The current Application has given rise to identical circumstances as described in VLY’s case. I adopt and affirm her Honour’s reasoning and interpretation.
28	The Applicant has indicated that the purpose of her case plan appeal to the Tribunal is to have further contact with the Child and to have the Child returned to her care in the future. Even if the Applicant were successful before the Tribunal in arguing that the Respondent should not have had a case plan of non-reunification, the Tribunal has no power to either increase contact with the Child or have the Child returned to the Applicant’s care. 
29	The CCV has made a PCO and the Tribunal has no power to revoke, vary or amend this order. The PCO provides that the Child is placed with her permanent carers and further specifies the frequency and circumstances in which contact may take place between the Applicant and the Child. 
30	Further, as the Respondent no longer has any authority to make a case plan, and as the case plan has ceased to have any effect, no effective orders can be made in respect of it under ss 51(2) or (3) of the VCAT Act. Any decision affirming, varying or setting aside the Reviewable Decision and making another decision in substitution for it could have no effect. There is no utility in setting aside the case plan and directing the Respondent to reconsider it. No case plan can operate into the future because it has been superseded. 
31	If the Applicant opposes the PCO, the correct process is to either apply to the CCV under s 326 of the CYF Act (the Applicant was unsuccessful in making such an application to the CCV) or appeal to a higher Court under s 329 of the CYF Act. 	
32	Accordingly, I agree that the Applicant’s Application to the Tribunal for a review of the non-reunification case plan should be summarily dismissed on the following grounds:
a.	First, the Application is lacking in substance because there is no operative case plan that may be reviewed under s 333 of the CYF Act and no case plan that affects the rights and interests of the Child; 
b.	Secondly, the Application is futile as there is no decision which can be varied or implemented by the Tribunal; and
c.	Thirdly, the Application constitutes an abuse of process because it is attempting to re-litigate the Applicant’s unsuccessful attempt to oppose orders made in the CCV. 
conclusion
33	For the reasons given, the Application and this proceeding is dismissed under s 75(1)(a) of the VCAT Act. 

Judge Jenkins
Senior Member