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As the court thinks fit

Cover Story

Cite as: November 2011 85(11) LIJ, p.26

Specialist tribunals have a broad discretion to determine when and how they will inform themselves, and where they are informed with reliable and probative material they may adopt unique procedures to facilitate relevant decisions. 

By David Farrelly and Jeremy Meagher

Certain specialist courts and tribunals have statutory power to inform themselves in such manner as they think fit, “despite any rules of evidence to the contrary”. The Family Division of the Children’s Court, which deals with child welfare matters, is one such specialist jurisdiction. In Secretary to the Department of Human Services v Sanding (Sanding),1 Bell J explored the limits and implications of this procedural power and found it broader and more pervasive than had been assumed.

Sanding – The Facts

In Sanding four Aboriginal children were living with their mother in the home of their grandmother. The mother’s drug-affected behaviour repeatedly brought the family to the attention of the Secretary to the Department of Human Services (DHS). It was never disputed that the grandmother was the real carer of the children.

DHS sought and was granted a custody to secretary order (the order),2 which enables DHS to determine matters involving the care and placement of children. Initially DHS allowed the children to continue living with the grandmother while the mother remained in the home. But when the mother’s behaviour further deteriorated, DHS removed the children and placed them in out-of-home care. No Aboriginal foster placements were available, so the children were moved to separate, non-Aboriginal placements.

The mother sought to have the children returned to the care of the grandmother. She advised DHS she would leave the home to allow the grandmother to care for the children alone. However, DHS remained concerned about several additional matters and refused to allow the children to return to the grandmother, despite the mother’s departure.

The mother continued to pursue the immediate return of the children to the grandmother and filed an application to have the order revoked.3 The Children's Court may revoke a custody order when “it is in the best interests of the child to do so”.4 At first mention, the magistrate conducted what is commonly referred to as a “submissions contest” and ultimately granted the mother’s application, revoked the custody order and made an interim accommodation order (IAO),5 immediately returning the children to the grandmother’s care. DHS appealed against the decision, claiming the Court had, inter alia, erred at law in revoking the custody order after a submissions contest instead of adjourning the matter to a full hearing.

Court procedures and submissions contest

The Family Division of the Children’s Court is the specialist jurisdiction authorised to deal with applications brought by DHS in matters of child abuse and maltreatment. It is authorised at s215(1)(d) of the Children, Youth and Families Act 2005 (Vic) (CYFA) to proceed “as it thinks fit”.

It is now well-established that specialist courts and tribunals with such procedural power are authorised to develop procedures designed to facilitate their specialist purpose.6 The submissions contest format adopted by the magistrate in Sanding is an example of a flexible procedure developed by the Children's Court to deal with urgent child welfare matters.7 The submissions contest has been described by Gillard J8 as a procedure where “evidence is adduced by assertions from counsel for the parties and the parties themselves”. Gillard J stated that this “is no doubt a procedure adopted because of the urgency of an application and the interest of a child who may be subjected to some form of harmful conduct”.9 Typically a submissions contest occurs when DHS issues an application seeking to immediately remove a child from the care of their parents. When this action is opposed by the parents, the Court must decide the placement of the child.

The submissions contest is by necessity less than a full evidentiary hearing. It has therefore been the usual practice of the Court to rely on this procedure only for the making of interim orders in situations of urgency and immediacy, with the matter then adjourned to a full hearing where final determinations and orders can be made. In Sanding, however, the magistrate departed from this practice, and on the basis of the material put before him in the submissions hearing made a final determination that it was in the best interests of the children that the existing custody to secretary order be revoked to enable the children to immediately be reunited and placed in the care of their grandmother.

The magistrate gave reasons for this decision, including that:

  • there was an urgency in reuniting the children with each other and their grandmother;
  • it was inappropriate that they had been separated and placed in non-Aboriginal placements;
  • it was preferable that they be placed with a family member; and
  • given the mother had left the home, the grandmother, with some support and supervision, would be in a better situation to care for the children.

The appeal

At appeal in the Supreme Court before Bell J, DHS argued that the original hearing had miscarried at law because, above all, a disputed application for a final order (such as the revocation of a custody order) cannot, or at least ought not to be made without the matter going to a full evidence-based hearing. DHS argued it had been denied procedural fairness when the Children's Court adopted the submissions procedure which did not allow it to present its full case.

The issue then was about the submissions procedure the Court adopted and whether this was a legitimate exercise of the procedural discretion at s215 of the CYFA. In determining the appeal, Bell J reviewed the extent and implications of this procedural discretion that the Court may “inform itself on a matter in such manner as it thinks fit, despite any rules of evidence to the contrary”.

Procedural discretion

Courts and tribunals with procedural provisions like s215 are clearly distinguishable from courts subject to the traditional judicial paradigm. The formal rules of evidence need not apply in them. Evidence put before such courts or tribunals must be probative, reliable and relevant, but there are few rules relating to how such evidence is put.

As Bell J stated (at [133]):

“The material which might properly support a decision of a court or tribunal can legitimately come from a variety of sources, might occupy different points along a spectrum of probative force and reliability and, depending on the issue and circumstances, might require different treatment. Hearsay evidence is admissible if it is fairly reliable, although the weight to be given to it will need to be considered. Evidence which is not the best evidence may be admitted, but if challenged and the issue is important it is the best evidence which may be required”.

Such procedural discretion is not, however, without limitation. Bell J identified factors which may limit this discretion and then considered the interrelationship of these factors and their ultimate impact on the exercise of the discretion. The factors Bell J identified which limit the procedural discretion are:

  • the guiding principles of the (relevant) Act;
  • express provisions of the Act;10 and
  • natural justice and procedural fairness.

Guiding principles

The Children’s Court is established inter alia to protect children.11 This purpose is reflected in the guiding principles of the CYFA, with the paramount principle being “the best interests of the child”.12

The principles also provide that:

  • children are only to be removed from parents if there is an unacceptable risk of harm;
  • if removed, children are to be placed with other family members if possible;
  • it is desirable to keep siblings together when placed in out of home care; and
  • the Court must consider the possible harmful effect to children of delay in determining their matters.13

Further principles specific to respecting and maintaining Aboriginal culture and identity require that if removed from their parents’ care, Aboriginal children should be placed with other members of their family wherever possible and, if not, the placement must retain a connection with their culture.14

Natural justice

Natural justice also limits the procedural discretion of a court or tribunal to proceed as it thinks fit. Bell J noted the statement of Lord Denning MR when he said “a tribunal of this kind is master of its own procedure, provided that the rules of natural justice are applied”.15 Bell J then considered how “natural justice” and “procedural fairness” are affected when they come into conflict with mandatory statutory principles such as the paramount best interests of the child.

His Honour found that the application of the rules of natural justice must reflect the nature or purpose of the jurisdiction and cannot be applied in a manner which might frustrate that purpose.16 He cited with approval Nicholson CJ and Fogarty J in Separate Representative v E where they said that the Court’s paramount obligations are to the best interests of the child and “the rights of the disputants to natural justice are therefore qualified to the extent that those rights encroach on or are in conflict with these obligations”.17

Main finding

DHS argued it had been denied procedural fairness because the submissions contest format did not allow a full presentation of its case.

Using the reasoning elucidated above, Bell J found against it, stating that the Court is “the master of its own procedure, subject to the requirement to ensure a fair hearing”. He said any imposition of a requirement that the Court must act on the basis of hearing formal evidence was inconsistent with this procedural discretion. He found there was no express legislative provision in the CYFA that required a formal hearing, the rules of natural justice did not necessarily require it, and the paramountcy principle did not necessarily require it. He held (at [151]) that if the Court reasonably considered that a submissions contest suited the purpose of pursuing the best interests of the child and it was fair to all parties, it could adopt that procedure.

Having rejected the general assertion that the Court could not conduct a submissions hearing to make final orders, Bell J then considered specifically whether on the facts Sanding was a case in which the submissions contest was an appropriate procedure.

In determining this, Bell J noted (at [153]) that while the Court may adopt procedures to inform itself as it sees fit, the information it ultimately relies on must be “sufficiently reliable and probative”. On this issue his Honour placed significant weight on the fact that the material before the magistrate was not subject to serious dispute between the parties and that both parties identified the drug-taking behaviour of the mother and her disturbance of the home of the grandmother as the real risk to the wellbeing of the children (at [279], [280]). From this Bell J accepted the magistrate was entitled to conclude that the material before him was sufficiently reliable and probative for him to determine what was in the best interests of the children and on this basis to make a determination.

Bell J did, however, emphasise that it would not be appropriate for all matters in specialist courts and tribunals to be finally determined without a full hearing. In instances where, for example, there was a dispute over alleged facts, a submissions hearing alone would not be a procedure by which the Court could obtain “sufficiently reliable and probative” evidence. However, in the specific circumstances of Sanding the relevant facts were known and not in dispute between the parties and could therefore be accepted.

Bell J said (at [252]):

“In my view, the magistrate adopted the submissions contest procedure because, in the circumstances, it was the appropriate means of determining what was in the best interests of the child and was fair to the parties. That was especially so because the critical facts were not in serious dispute and, at the hearing, there emerged a new and dispositive consideration”. (The new and dispositive consideration was that the mother would leave the home.)

His Honour went on to say (at [153]):

“The court may inform itself as it thinks fit, provided that the information on which it acts is sufficiently reliable and probative to form a proper basis for its decision. It is not bound by the rules of evidence. Some cases may require formal evidence and other cases may not. The nature of the information which will form a proper basis for the court’s decision, and the procedure by which it will be obtained, will vary from case to case, or category of case to category of case. Where on the spectrum the case or category of case may sit is for the court to determine in the proper exercise of its procedural discretion, having regard to the paramount consideration of the best interests of the child and the court’s duty to ensure a fair hearing”.

Sanding must be understood in terms of its specific facts before it can safely be used as authority for other matters. It is submitted that the pivotal facts in Sanding that made it acceptable for the Court to proceed to a final order from a submissions hearing was the lack of significant dispute between the parties as to the facts, combined with the attendant sense of urgency the Court held with respect to addressing the issue of the children having been separated and placed in non-Aboriginal placements. In this sense, the dispute between the parties was more one of analysis as to whether on the accepted facts it was or was not safe for the children to return to the grandmother’s care, and the Court was quite clearly of the view that the issue of the children’s placement had to be resolved as a matter of urgency.

The DHS appeal argument, that it had been denied procedural fairness as it was not given the opportunity to present a full case, was not accepted because the full gamut of accepted and relevant facts had been before the Court, and as such the parties were accorded procedural fairness when they were each given the opportunity to put their submissions on these accepted facts to the Court.


It is submitted that Sanding establishes that specialist tribunals do have a broad discretion to determine when and how they will inform themselves in the pursuit of their specialist purpose and, where it can be said they are informed with sufficiently reliable and probative material (however that is obtained), they may make relevant decisions. Further, it also establishes that the interests of the disputant parties, including their interest in natural justice and procedural fairness, will not be allowed to unduly encroach or otherwise detract from the court’s or tribunal’s capacity to make decisions.

The first consequence of this is that practitioners should not assume that court practices derived from the traditional court paradigm apply in specialist courts and tribunals. The second is that they should not assume that “procedural fairness” in specialist courts and tribunals means a party can take for granted they will be afforded unlimited opportunity to put their case in the way they feel best suits it, or in the manner a court or tribunal has traditionally proceeded.

The third consequence is that just as long as a procedure adopted has provided the specialist court or tribunal with “sufficiently reliable and probative material”, is consistent with the guiding principle(s) and purpose of the relevant Act, and can reasonably be said to be have been “fair” between the parties, then it is likely to be accepted as legitimate.

DAVID FARRELLY and JEREMY MEAGHER are legal practitioners based in south-western Victoria who practise exclusively in child protection and related family welfare matters. The views and opinions expressed in this article are those of the authors and do not represent those of any other person or organisation.

The numbers in square brackets in the text refer to the paragraph numbers in the judgment.

1. Secretary to the Department of Human Services v Sanding [2011] VSC 42.

2. Section 275(1)(e) Children, Youth and Families Act 2005 (Vic) (CYFA).

3. Section 304 CYFA.

4. Section 308(1)(b) CYFA.

5. Section 262(1)(f) CYFA.

6. Bell J in Sanding, note 1 above, at [116]–[117].

7. Bell J in Sanding, note 1 above, at [119].

8. Purcell v RM [2004] VSC 14, cited in Sanding at [125].

9. Note 8 above.

10. Most specialist jurisdictions have some specific procedural provisions within the enabling Act – see, for example, s525 (Child legal representation) and s557 (Disposition reports) CYFA, both of which Bell J considered in Sanding.

11. Section 1(d) CYFA.

12. Section 10(1) CYFA.

13. Section 10(3)(a)–(r) CYFA.

14. Section 12 CYFA.

15. TA Miller v Minister for Housing and Local Government [1968] 1 WLR 992, 995, cited in Sanding at [128].

16. Bell J also canvassed other legislative sources which may be relevant to questions of procedural fairness and natural justice, including the Charter of Human Rights and Responsibilities Act 2006 and international conventions relevant to the treatment of children. It is submitted, however, that in the context of the current case neither of these added any considerations that were not already embedded in the CYFA or applicable via the common law. Bell J also considered the procedural fairness and natural justice rights as they now arise in the Victorian Charter of Human Rights.

17. (1993) 114 FLR 1, cited in Sanding at [136].


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