A father forced into two weeks of hotel quarantine following the sudden death of his 13-year-old daughter is suing the state, claiming he was unlawfully detained after flying back to Australia to bury his child.
Hayden Flinn was working in Hong Kong when he got a call on May 2, 2021 to say his young daughter had died in Melbourne, a year into the COVID-19 global pandemic.
What followed, he says, was a distressing two weeks locked in a small Richmond hotel room with his grieving teenage son after the pair were refused permission to quarantine with family at home.
Flinn says he was barred from viewing his daughter’s body and could not be with his distressed wife as she planned their child’s funeral.
The corporate lawyer, who is now co-chief executive of a large Hong Kong law firm, is now suing the state of Victoria and the Department of Health for damages, claiming he suffered “indignity and insult”, a loss of liberty and mental distress.
The trial, due to start in the Supreme Court on Monday, is set to hear from a string of witnesses including former chief health officer Brett Sutton and his deputy, Allen Cheng, about the decision-making process around the Flinns’ case and other exemptions given during the pandemic.
The case will be heard by a judge alone, after the state successfully applied to keep it from a jury.
The government argued that in addition to the case being legally complex, jurors might be prejudiced “from the notoriety and publicity concerning the mandatory hotel quarantine program and the restrictions imposed on all Victorians by the state during the COVID-19 pandemic”.
Part of the case will rely on emails sent between quarantine staff and the Health Department that reveal the father’s fight to be with his family and confusion among staff as the government worked to halt the spread of the virus.
“The level of distress being experienced by the family was assessed as too high for the family to maintain [detention] requirements,” a Health Department email, sent on May 4, 2021, read. “The alternative of going home to wife and family would pose a COVID-19 risk to family and public health.”
Flinn says he should never have been detained, with officials failing to properly assess his personal circumstances, vaccination status and the low risk presented by travellers from Hong Kong, or conduct mandatory 24-hourly reviews to determine whether his continued detention was necessary.
Lawyers for the state and the Health Department deny any wrongdoing, maintain their decision-making was reasonable and justified, and say that Flinn chose to remain in quarantine.
Court documents show that when Flinn’s daughter died, he boarded a Cathay Pacific flight to Australia with 20 other passengers as family and friends helped submit a hotel quarantine exemption request on compassionate grounds.
After testing negative to the virus, Flinn and his son were issued detention notices at Melbourne Airport mandating they be escorted by bus to the Element hotel on Swan Street, where they would be detained.
Flinn’s wife and other family members submitted a further exemption application on his behalf and emailed a confirmation of the child’s death to authorities.
Court records contain an email sent from Flinn to the Health Department urging a change of heart.
“Her body is at the Coroner’s Court. I would like to leave the hotel to see her. Thank you. Hayden.”
The director of operations for the COVID-19 and hotel support services then emailed the acting COVID quarantine compliance director supporting Flinn’s application.
“They have arrived to Australia this afternoon to the news of the death … their daughter/sister in very distressing circumstances,” they wrote. “We are providing mental health, specialised bereavement support, paediatric liaison and social work for this family who are now in our care.
“Please let me know if I can provide any further information to support the request in any way.”
Later on May 3, 2021, about 10.30pm, the Department of Justice secretary emailed the Department of Health to bring the case to its attention.
“The father has just flown in from Hong Kong (he has been vaccinated twice.) They need to identify the body of their daughter. If there is any way the public health team could explore whether there could be an exemption so the family could identify her body at the State Coroner’s office it would be appreciated.”
The following day, Flinn says, further emails were sent, including from a mental health psychiatrist, who found the father was highly distressed and being kept in a small room with his son without any medical or psychiatric care.
“I am extremely worried about their mental state. He desperately wants [to] say goodbye to [his daughter],” Dr Fiona Bassad wrote.
Court records show Flinn then emailed the Health Department again, raising fears of his young son being locked in a room with him while he was in a state of severe grief.
As emails continued to flow between different departments, including that of Sutton, it was confirmed the family’s exemption request to move to home quarantine had been denied.
In the three weeks before Flinn’s request, government records show COVID-19 Quarantine Victoria (CQV) was made aware of 236 exemption requests, four of which were approved on the grounds of exceptional medical needs.
Flinn and his son were finally allowed to leave the hotel about 5.30pm on May 17, 2021, after completing their fortnight of seclusion.
His daughter was laid to rest on May 22, 2021, almost three weeks after her death.
At the time of Flinn’s return, there were no lockdowns in Victoria or reported community transmission of the virus.
An earlier hearing was told the “battlegrounds” would lie in the legal complexities involved in the Flinn case, including whether alternative quarantine arrangements should have been approved for the family.
Effective from 11.59pm on March 15, 2020, the federal government imposed 14-day self-isolation requirements on all international arrivals to Australia, with Victoria also declaring a state of emergency due to the coronavirus’s serious risk to public health.
Lawyers for the state and Department of Health said in court documents that the hotel quarantine policy was made in urgent and unprecedented circumstances to slow the spread of the global pandemic.
The state’s legal team maintain that at all times in May 2021, the chief health officer acted consistent with policy to detain travellers for 14 days.
Exemption requests were considered on an individual basis, they said.
They confirmed a decision to decline the Flinn family’s exemption request was made on May 3, 2021.
However, they deny the detention was unlawful or that any false imprisonment occurred. Detention reviews, they said, occurred every 24 hours, as required.
They also said the Flinn family expressed gratitude to those who had provided care and support to Hayden and his son, and that they had decided to remain in hotel quarantine because of the level of welfare help they were receiving.
“I think that the family has appreciated that the level and quality of service being provided in CQV was actually serving their needs better than a remote location version would offer,” one email read.
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