Kauthen Legal assisted a client who lodged an appeal to the Supreme Court from a decision by the Children's Court to grant an Interim Accommodation Order (IAO) on the application of the Department of Health and Human Services (DHHS).
The child was in the care of the Grandparents who had looked after the child for over 9 years. DHHS contended that our client's son (who is the child's father) posed a risk to the child following him being released on bail and who was bailed to our client's house.
Our client's child was removed from their home by DHHS Child Protection and placed in the care of the biological mother.
The IAO provides for a child viewed by DHHS as at risk to be placed into alternative accommodation.
Section 162 of the CYF Act says that a child is in need of protection where:
Section 10 says that in granting an IAO, the Court considers the best interests of the child as paramount by considering:
In seeking an IAO, DHHS assessed that there was an unacceptable risk of physical and emotional harm to the child and that our client was unlikely to protect the child from this harm.
DHHS made their decision on the following basis:
The Court cited authorities including Secretary to the Department of Health & Human Services v Children’s Court of Victoria that said:
Furthermore the Court has the power to affirm the the IAO or set it aside and impose a new IAO on alternative conditions in accordance with the best interests of the child.
The Court found for our client and set aside the IAO for the following reasons:
The conduct of the police is questionable in this case, as was the eagerness of DHHS to accept their information and incorporate it in their reports without any substantiated facts underpinning the information.
The case demonstrates the need for DHHS to be acting on solid facts and not speculation so as to not be viewed as biased toward one party.
To read the case in full: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2020/740.html
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