Banks (a pseudonym) v Chief Executive of the Department for Child Protection - [2023] SASC 39

Supreme Court of South Australia
(Appeal to a Single Judge)
BANKS (A PSEUDONYM) v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2023] SASC 39
Judgment of the Honourable Justice Blue
22 March 2023
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CUSTODY - APPEALS
The appellant appeals against an order by a Magistrate of the Youth Court on the application of the first respondent placing the second respondent, her son, under the guardianship of the first respondent pursuant to section 53(1)(e) of the Children and Young People (Safety) Act 2017 (SA).
The grounds of appeal in substance are as follows:
1.The Magistrate made procedural errors in:
(a)    refusing to allow the trial to be adjourned to allow the appellant to obtain legal representation after another Magistrate unlawfully removed her counsel;
(b)    improperly and excessively interfering in and restricting the appellant’s conduct of the trial and exhibited bias therein;
(c)     refusing to allow the appellant to be provided with proper disclosure;
(d)    refusing to allow the appellant to reopen the defence case based on new evidence obtained.
2.The Magistrate made evidentiary errors in:
(a) refusing to allow evidence as to the lawfulness of the removal of the appellant’s son pursuant to section 41 of the Act;
(b)    refusing to allow evidence of what constituted the brief to Professor Jureidini;
(c)     refusing to allow evidence as to a sexual assault of the appellant’s son within the residential care facility.
3.The Magistrate’s reasons for judgment were inadequate or defective in:
(a)    failing to make a critical analysis of, give weight to or mention the evidence of some of the witnesses;
(b)    relying on information of persons who did not give evidence;
(c)     relying on materials that were not admitted as admissible documents and comprised double hearsay.
4.The Magistrate made errors of law in:
(a)    making the errors referred to above;
(b)    failing to apply the legal principles set out by the Full Court.
5.The Magistrate erroneously made findings of fact for which there was no evidence or the evidence was to the contrary.
Held (dismissing the appeal):
1.The Magistrate did not refuse to allow the trial to be adjourned to allow the appellant to obtain legal representation and another Magistrate did not unlawfully remove her counsel (at [221]).
2.The Magistrate did not improperly and excessively interfere in or restrict the appellant’s conduct of the trial or exhibit bias (at [277]).
3.The Magistrate did not err in refusing late applications by the appellant for issue of a witness summons or disclosure of documents (at [292]).
4.The Magistrate did not err in refusing to allow the appellant to reopen the defence case (at [318]).
5.The Magistrate did not err in refusing to allow evidence as to the lawfulness of the removal of the appellant’s son pursuant to section 41 of the Act (at [332]).
6.The Magistrate did not refuse to allow evidence of what constituted the brief to Professor Jureidini (at [359]).
7.The Magistrate did not refuse to allow evidence as to a sexual assault of the appellant’s son within the residential care facility (at [368]).
8.The Magistrate’s reasons for judgment were not inadequate or defective insofar as the Magistrate addressed or did not address evidence of some of the witnesses (at [392]).
9.The Magistrate’s reasons for judgment were not inadequate or defective insofar as the Magistrate relied on information of persons who did not give evidence or on documentary materials (at [402], [414]).
10.The Magistrate did not fail to apply the legal principles set out by the Full Court in Jennings v Police [2019] SASCFC 93 (at [421]).
11.The Magistrate did not erroneously make findings of fact for which there was no evidence or the evidence was to the contrary (at [568]).
12.Appeal dismissed (at [569]).

Children and Young People (Safety) Act 2017 (SA) s 18(1)(e), s 36(2), s 41, s 41(1), s 41(5), s 42, s 53, s 53(1)(e), s 53(2), s 56 (3), s 147(1)(c); Education and Children’s Services Act 2019 (SA) s 3(1), s 60, s 68, s 133; Youth Court Act 1993 (SA) s 22, referred to.
Briginshaw v Briginshaw (1938) 60 CLR 336; Jennings v Police [2019] SASCFC 93; R v Gjergji [2016] SASCFC 101, considered.

BANKS (A PSEUDONYM) v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2023] SASC 39
Single Judge Appeal: Civil

BLUE J: The appellant Eliza Banks (a pseudonym) (Eliza) appeals against an order by a Magistrate of the Youth Court on the application of the first respondent, the Chief Executive of the Department for Child Protection (the Department), placing the second respondent, her son Matthew (a pseudonym) (Matthew), under the guardianship of the Chief Executive pursuant to section 53(1)(e) of the Children and Young People (Safety) Act 2017 (SA) (the Act).
The grounds of appeal in substance[1] are as follows:
[1]     I have rearranged and paraphrased the grounds of appeal contained in Eliza’s Appeal Grounds to reflect the conventional language of grounds of appeal and the substance of the grounds as expressed and a logical order.
1.The Magistrate made procedural errors in:
(a)    refusing to allow the trial to be adjourned to allow the appellant to obtain legal representation after another Magistrate unlawfully removed her counsel;[2]
[2]     Ground 1I.
(b)    improperly and excessively interfering in and restricting the appellant’s conduct of the trial and exhibited bias therein;[3]
[3]     Ground 1(e), 1E, 1F, 1P, 1Q.
(c)    refusing to allow the appellant to be provided with proper disclosure; [4]
[4]     Ground 1(c), 1C.
(d)    refusing to allow the appellant to reopen the defence case based on new evidence obtained.[5]
[5]     Ground 1(d), 1O.
2.The Magistrate made evidentiary errors in:
(a) refusing to allow evidence as to the lawfulness of the removal of Matthew pursuant to section 41 of the Act;[6]
[6]     Ground 1(a), 1A, 1G, 1H.
(b)    refusing to allow evidence of what constituted the brief to Professor Jureidini;[7]
(c)    refusing to allow evidence as to a sexual assault of Matthew within the residential care facility.[8]
3.The Magistrate’s reasons for judgment were inadequate or defective in:
(a)    failing to make a critical analysis of, give weight to or mention the evidence of some of the witnesses;[9]
(b)    relying on information of persons who did not give evidence;[10]
(c)    relying on materials that were not admitted as admissible documents and comprised double hearsay.[11]
4.The Magistrate made errors of law in:
(a)    making the errors referred to above;[12]
(b)    failing to apply the legal principles set out by the Full Court.[13]
5.The Magistrate erroneously made findings of fact for which there was no evidence or the evidence was to the contrary.[14]
[7]     Ground 1(b), 1B.
[8]     Ground 1(b), 1B.
[9]     Ground 1J, 1K, 1L.
[10] Ground 1M.
[11] Ground 1N.
[12] Ground 2(a).
[13] Ground 2(a).
[14] Ground 2(b), 3.
Background
Matthew was born in July 2013. His father is Zane Philips (a pseudonym) (Zane). Eliza and Zane separated before Matthew was one year old. Zane moved to Queensland.
Eliza’s oldest child Brandon (a pseudonym) (Brandon) was born in August 2000. Eliza and Brandon’s father separated and Brandon was in shared (50/50) care.
In late 2014 or early 2015 at the age of 14 Brandon was diagnosed as diabetic. In August 2016 he suffered a seizure, following which he lost his memory of events before then. He then lived with his father.
On 8 December 2015, the Federal Circuit Court made orders by consent that Matthew live with his mother, with Zane permitted to have supervised access visits.
On 29 January 2019 Matthew commenced primary school in reception. In July 2019 he received a positive mid year report at the end of term 2. Between 29 January 2019 and 14 June 2019 he missed six and a half days of school and was late on 20 other days.
On 17 June 2019 Eliza took Matthew to the local medical practice. They saw Dr Tripathi. He recorded the following. Matthew’s symptoms were described as feeling flat, lethargic and having achy legs for the last two days. Dr Tripathi suspected a viral illness. Eliza said that there was a strong family history of diabetes and she wanted a blood glucose level and ketone analysis done. The ketone analysis could not be done at the medical practice and Eliza asked to go to hospital for these tests to be done. Dr Tripathi arranged for admission to the local hospital. The local hospital undertook some blood tests and Matthew was transferred to the Women’s and Children’s Hospital.
On 17 June 2019 Matthew was admitted at the Women’s and Children’s Hospital and discharged on 19 June 2019. The Hospital sent a separation summary to the local medical practice. It recorded the following. Matthew was diagnosed as having a viral URTI, testing positive to parainfluenzae 2. It was reported to the Hospital that Matthew had a family history of type I diabetes. Matthew’s symptoms were fevers, headaches, lethargy, cough, poor oral intake and polyuria. His blood glucose level was 2.3 with ketones of 3.5. He was given a carbotest at the local hospital and the Women and Children’s Hospital undertook six hourly testing of blood glucose level and ketones, which both returned to normal. After an eight hour fast he had a normal blood glucose level of four to six. He had a partial hypoglycaemia screen, which was unremarkable. The endocrinology unit recommended that no further investigations were needed. However, if Eliza wanted, she could have a diabetic screen completed in the future. The discharge plan was for Matthew’s general practitioner to follow-up with dietetics and psychology, which Eliza was to arrange.
On 25 June 2019 Eliza took Matthew to the local medical practice. They saw Dr Nelson. She recorded the following. Eliza expressed frustration at the care given. She requested home blood glucose level testing strips but Dr Nelson explained that Matthew did not qualify because he was not a diagnosed diabetic. Dr Nelson also explained that it was not ideal to be doing regular fingerpick testing on Matthew. Matthew was well on examination. Dr Nelson recommended that Matthew have regular small meals to prevent future hypoglycaemias. Dr Nelson requested tests from SA Pathology to check for possible diabetes.
On 25 June 2019 Dr Nelson issued a medical certificate. She said that Matthew experienced low blood sugar level in the setting of an infection. He was unfit for school between 17 June 2019 and 25 June 2019. It was important that he was able to have snacks during the day, particularly when unwell. The medical certificate was provided to Matthew’s primary school.
On 5 July 2019 Dr Ton recorded that she left a voicemail message for Eliza saying that the blood tests showed no sign of diabetes risk.
On 9 July 2019 Eliza took Matthew to the local medical practice. They saw Dr Ton. She recorded the following. Eliza was very anxious and was most concerned about Matthew developing diabetes. In view of Eliza’s anxiety, Dr Ton offered a referral to a paediatrician. Eliza said that social anxiety was an issue for Matthew. Dr Ton suggested a mental health care plan for Matthew’s anxiety.
On 9 July 2019 Dr Ton issued a letter addressed to school staff stating that Matthew was prone to low blood sugar levels and would need to eat prior to physical activity to prevent this from happening. This letter was provided to his primary school.
On 23 July 2019 Eliza took Matthew to the local medical practice. They saw Dr Ton. She recorded the following. It was reported that Matthew had a fever two days ago, rhinorrhoea and cough. On examination he appeared well and she issued reassurance. Dr Ton referred Matthew to a psychologist, Ms James-Valentine, and prepared a GP Mental Health Care Plan for that purpose. She also referred Matthew to a paediatrician, Dr Ranasinghe.
On 19 November 2019 Dr Ranasinghe saw Matthew with Eliza. She sent a letter to Dr Ton reporting on the consultation. She recorded the following.
Matthew was referred for assessment of his ketotic hypoglycaemic episode in June 2019. Eliza told Dr Ranasinghe that since then Matthew had a few further episodes of being unwell, feeling lethargic and tired. Although she had not checked his blood sugar levels, she was concerned whether this was related to Matthew having low blood sugar. She said that there was a family history of hypoglycaemia, Matthew’s older brother had type I diabetes, she was concerned that Matthew might develop type I diabetes, and this was also causing Matthew some anxiety.
On examination, Matthew appeared well. He expressed concern that he would get sick like his brother. Dr Ranasinghe expressed the opinion that Matthew’s hypoglycaemia could be due to an intercurrent illness rather than any underlying metabolic condition. However, in light of the family history and Eliza’s concern, she organised blood tests and wrote a referral for a metabolic review at the Women’s and Children’s Hospital. She arranged to see Matthew again in six months time and advised Eliza to contact her earlier if Matthew had a further episode of hypoglycaemia. Subsequently, the blood test was reported as completely normal.
Between 17 June 2019 and 13 December 2019 Matthew was absent from primary school on 19 and a half days and was late arriving on a further 34 days.
In December 2019 Matthew received a positive mid year report at the end of term 4. However, concern was expressed that he had numerous days late which meant that he missed many guided reading sessions and it was requested that he arrive to school more promptly.
Between 28 January 2020 and 16 March 2020 Matthew was absent from primary school on 11 days and was late arriving on a further 10 days.
On 11 March 2020 the school principal prepared a School Care Plan for Matthew, in relation to a health issue described as hypoglycaemia, based on notes made by Eliza. It provided for the class teacher to supervise eating lunch and to use an eating record to record what he ate for recess and lunch. It provided for Matthew to be temporarily withdrawn from physical education until a health care plan could be written to provide medical guidance. It identified steps to be taken if Matthew displayed symptoms of low blood glucose levels, which it identified. It provided for Eliza to provide a health care plan and/or medical advice from a doctor as soon as possible. A pro forma eating record was agreed.
On 11 March 2020 to 16 March 2020 Matthew attended school and the class teacher completed the eating record for those days.
On 17 March 2020 Matthew did not attend school and never returned.
On 20 March 2020 Eliza took Matthew to the local medical practice. They saw Dr Gillatt. She recorded the following. Eliza produced a Centrelink carer payment form in which Eliza sought a carer allowance in respect of Matthew which she had signed on 10 March. Dr Gillatt signed the form. Eliza reported that Matthew was not seeing Dr Ranasinghe anymore. He was only seeing the Women’s and Children’s Hospital metabolic unit.
On 31 March 2020 Dr Ranasinghe had a telephone consultation with Eliza on behalf of Matthew instead of a physical appointment due to COVID-19 risk. She sent a letter to Dr Ton reporting on the consultation. She recorded the following. Eliza said that, since the consultation in November 2019, Matthew had a few difficulties with his health, complaining of aches and pain and being tired and momentary flashing lights and a funny feeling around his eyes. Eliza was concerned about epilepsy because there was family history of epilepsy. Matthew had not attended school for the past five weeks and Eliza was home schooling him because of COVID-19 infection risk. In the last few days, Matthew had been saying that he wanted to go back to school. Matthew was worried about becoming unwell and Eliza had not yet been able to find a psychologist/counsellor for him. Dr Ranasinghe organised an EEG to rule out possible seizures in light of the family history of epilepsy and stressed the importance of obtaining psychological support for Matthew. She organised a review in a few months time.
On 3 April 2020 the contact notes maintained by the primary school (the school contact notes) recorded the following. Matthew’s class teacher expressed concern that she had not heard from Eliza since 13 March 2020 and Matthew had not attended school since 16 March 2020. The principal telephoned Eliza and the emergency contacts leaving voice messages. Eliza’s sister rang back and was asked to request Eliza to contact the principal.
On 6 April 2020 and the balance of that last week of term 1, students did not attend at Matthew’s primary school due to Covid-19.
On 27 April 2020 students returned to attending at Matthew’s primary school after the COVID-19 absence. However, Matthew did not return.
On 30 April 2020 the school contact notes recorded that the principal spoke to Eliza’s mother and asked her to request Eliza to telephone the principal. On 6 May 2020 they recorded that the principal told Eliza’s mother that, if she did not hear from Eliza, she would request a SAPOL welfare check.
On 6 May 2020 the school contact notes recorded that a Social Worker – Truancy from the Department for Education sent a text message to Eliza saying that Matthew had not been at school for almost two months and, if the school did not hear from her, Department procedure was to request a SAPOL welfare check.
On 18 May 2020 the school contact notes recorded that the Social Worker – Truancy sent an email to the principal saying that she had met with Eliza on 14 May 2020. She reported the following. Eliza was very protective of Matthew but his specific medical issues had not been identified or diagnosed. She requested that Eliza complete medical plans with her general practitioner so that the Education Department had solid medical advice to go on.
On 25 May 2020 the school contact notes recorded the following. There was a meeting between the school principal, the Social Worker – Truancy and Eliza. They agreed on adaptations required by Eliza for Matthew to return to school pending specific advice and guidance to be received from medical professionals by the end of June 2020. Minutes were prepared of the meeting and distributed to the meeting participants.
On 17 June 2020 Eliza took Matthew to the local medical practice. They saw Dr Gillatt. She recorded the following.
Eliza requested an interim Health Care Plan for school. Eliza had produced a plan in conjunction with the school principal dated 11 March 2020, which she provided to Dr Gillatt, but she now sought a formal health care plan. Eliza reported that Matthew was “pre-diagnosis” and was now off school until Dr Ranasinghe had other results. Eliza complained of lack of support from the school principal and said that the Education Department was now involved. She said that she wanted supervision at school to make sure that Matthew ate while he was at school.
Dr Gillatt explained that, if Dr Ranasinghe had given advice about Matthew not returning to school, she should be the one completing this paperwork. However, Eliza was insistent that she needed a general practitioner to complete the forms now and Dr Gillatt agreed to do so.

On 17 June 2020 Dr Gillatt created and signed a Non-Specific Health Care Plan in respect of Matthew. She said that Matthew had suspected hypoglycaemic episodes, which tended to occur if he has not eaten regular meals and snacks between meals, with symptoms responding to simple food and drink. She recommended supervision of Matthew eating regular snacks as well as lunch; and, if he displayed symptoms of low blood glucose, he should be given food and a sugar-based drink. She said that confirmation of diagnosis and advice was awaited from specialist Dr Ranasinghe. It appears that this document was provided to Eliza by Dr Gillatt but not to the school (see below).
On 18 June 2020 the school contact notes recorded the following. There was a meeting between Matthew’s class teacher, the other year 1 class teacher and Eliza. Eliza said that Matthew had reactive hypoglycaemia but she had been told that an official diagnosis could take as long as five years. She said that the general practitioner had not provided a Health Care Plan and advised Eliza to see a paediatrician to get one, which had not yet occurred. She said that the paediatrician was not comfortable for Matthew to return to school until there was a Health Care Plan in place. She hoped to have a Health Care Plan provided by the end of July. They discussed arrangements to apply upon Matthew’s initial return to school. Minutes were prepared of the meeting and distributed to the meeting participants. There is no reference in the minutes to the consultation with Dr Gillatt on the previous day or to the Health Care Plan prepared or to be prepared by her.
On 7 July 2020 the school contact notes recorded the following. The Social Worker sent an email to the principal and class teacher saying that she was still trying to make progress with Matthew’s transition back to school but it was not easy because Eliza had so many anxieties about it.
On 30 July 2020 the school contact notes recorded the following. The Social Worker sent an email to the principal saying that Eliza was still not comfortable about Matthew returning to school. She also said that Eliza had contacted the Education Department’s Customer Feedback Unit to complain that Department policies had not worked to protect or support Matthew.
On 30 July 2020 the school contact notes recorded the following. An officer from Customer and Information Services (the complaints unit) sent an email to the principal saying that Eliza had complained that relief teachers do not supervise Matthew when he is eating and she was seeking for the school to follow the Health Care Plan. The principal responded saying that the school had been requesting a Health Care Plan since mid 2019 and Eliza repeatedly said that Matthew had pre‑diabetes but the school had not yet been supplied with a Health Care Plan from a doctor. She said that during February 2020 a relief teacher inadvertently let Matthew go to physical education and Eliza was very upset by that. This led to the school care plan written on 11 March 2020.
On 5 August 2020 Eliza took Matthew to see Dr David Ketteridge, Staff Specialist Paediatrician in the Metabolic Clinic at the Women’s and Children’s Hospital. He sent a letter to Dr Ranasinghe reporting on the consultation. He recorded the following.
Eliza told Dr Ketteridge that Matthew was not attending school because the health care plans that Dr Ranasinghe suggested had not been instituted by the school. Dr Ketteridge noted that in the past Matthew had had antibody studies looking for risk of diabetes and they were negative. On examination, Matthew was in good health.
Dr Ketteridge said that they may not make a formal metabolic diagnosis. As Matthew seemed to manage overnight fasting without any problem, he doubted there was benefit in undertaking a formal fasting study. He had recommended using some of Matthew’s DNA to do a panel for hypoglycaemia and ketolytic defects. He said that he would link with the Hospital’s school liaison people to assist in getting Matthew back to school. He organised to review Matthew in three months.
On 5 August 2020 Dr Gillatt returned a telephone call from Dr Ketteridge. Dr Gillatt recorded the following. Dr Ketteridge said that Eliza was very anxious. He said that Matthew did not have diabetes. He had arranged genetic testing but was not sure that it would be helpful. He was going to try to get Matthew back to school in conjunction with the Women’s and Children’s Hospital school liaison people. He was happy with the school plan that had already been done.
On 7 August 2020 Matthew had an EEG, which was within normal limits for age and state and showed no epileptiform features.
On 13 August 2020 the school contact notes recorded the following. The officer from Customer and Information Services sent an email to Eliza providing a detailed response to her complaints. She concluded by encouraging Eliza to work with the school to plan and support Matthew’s return to school.
On 13 August 2020 Eliza had a telephone consultation with the medical practice. She spoke to Dr Valero. Dr Valero recorded that Eliza said that she was homeless at the moment and was very stressed trying to keep Matthew healthy.
On 26 August 2020 Eliza took Matthew to the local medical practice. They saw Dr Valero. She recorded the following. It was difficult untangling Matthew from Eliza in the presentation. Eliza complained about the school principal and about physical education teachers making Matthew do physical education. Eliza said she was unsatisfied with doctors and no one was taking ownership. Eliza said that the Education Department was saying that Matthew should be at school and the GP Health Care Plan should be followed but Eliza considered that this was not appropriate. Ultimately Eliza became very angry and stormed out of the appointment.
On 28 August 2020 Dr Nelson sent a referral to Country Health Connect for a psychologist to see Eliza. Country & Outback Health referred Eliza to Sonder.
In about August 2020 Eliza commenced taking Matthew to see Bree McIntosh, a Certified Nutrition and Wellness Coach.
On 29 October 2020 Eliza attended a consultation with Ms Hodson of Sonder. Ms Hodson made notes of the consultation. She recorded the following. Eliza said that she had been evicted from her rental property in 2014 and since then had stayed in several short-term rental places or with friends. She said at one point that she was living in emergency accommodation and at another point that she was living in a hotel. She was applying for community housing.
On 30 October 2020 the school contact notes recorded that the principal of the Women’s and Children’s Hospital school sent an email to the primary school principal saying the following. He met Eliza and Matthew for the first time that day. Matthew attended the school in the afternoon and was to return the following week on the basis that it was a temporary enrolment while a permanent enrolment was arranged. He had a Non-Specific Health Care Plan which they would be following.
On 10 November 2020 Eliza took Matthew to see Dr Ketteridge. He sent a letter to Dr Ranasinghe reporting on the consultation. He recorded the following.
Eliza told Dr Ketteridge that Matthew had started attending the hospital school in the first week of November but he had been unwell for three to five days before the 10 November 2020 appointment. Dr Ketteridge said that Matthew appeared quite well and blood tests suggested a mild viral infection. No specific therapy was needed.
Dr Ketteridge told Eliza that there was no evidence that Matthew had significant hypoglycaemia and the results confirmed that he did not have diabetes. He encouraged Eliza to continue to bring Matthew to the hospital school. He asked her to make an appointment to see Dr Ranasinghe to arrange for immunoglobulins IgG subclasses blood tests. He would arrange to review Matthew in two to three months.
On 26 November 2020 the school contact notes recorded that the principal received an email from an officer from Student Support Services at the Education Department stating that Eliza had agreed to send Matthew to another local school the next year.
On 27 November 2020 Eliza attended a telephone consultation with Ms Hodson of Sonder. Ms Hodson made notes of the consultation. Ms Hodson recorded that Eliza said that she had taken Matthew out of the hospital school and planned to home school him. She still had no secure housing.
On 1 December 2020 and 7 December 2020 the school contact notes recorded that the primary school principal was told by the Education Department officer respectively that enrolment at the other local school had fallen through and that Eliza now wanted Matthew to return to the original primary school.
On 22 December 2020 Eliza on behalf of Matthew had a telephone consultation with Dr Ketteridge. He sent a letter to Dr Ranasinghe reporting on the consultation. He recorded the following.
Dr Ketteridge and Eliza discussed the return of Matthew to school. Dr Ketteridge considered that the Health Care Plan written by Dr Gillatt seemed quite appropriate. However, Eliza said that she wanted Matthew to be trained to check his blood glucose levels. Dr Ketteridge advised her that this would be inappropriate and in any event ineffective if he were drowsy. He informed her that the results of the genetic studies did not show any known mutations in any of the genes associated with hypoglycaemia or defects of ketone metabolism or known nuclear mitochondrial genetic mutations.
Dr Ketteridge said that, because of the family history, he arranged a further blood sample to exclude mitochondrial DNA mutations but suspected that it would be negative because the expected phenotypes did not particularly fit with Matthew’s clinical phenotype. In relation to Matthew’s recurring infections reported by Eliza, he said that the immunoglobulins showed raised lgG 4 subclass and he had arranged to repeat lgG subclasses. He said that he would post the form for the blood tests to Eliza to arrange.
On 23 December 2020 Eliza on behalf of Matthew had a telephone consultation with the local medical practice. She spoke to Dr Gillatt. She recorded the following. Eliza requested a referral to see Dr Ranasinghe again. Dr Gillatt produced and signed a referral. Eliza subsequently made an appointment to take Matthew to see Dr Ranasinghe on 10 February 2021.
On 24 December 2020 the school contact notes recorded that the Education Department officer sent an email to Eliza saying the following. She formally raised the Department’s ongoing concerns regarding Matthew’s chronic non-attendance at school. Matthew must attend at school from the beginning of term one 2021. The Health Care Plan devised by the Women’s and Children’s Hospital could be shared with the school. Eliza must provide a residential address to the school. If Matthew did not attend school or Eliza did not work with the Department to allow the current Health Care Plan to be shared with the school, statutory options would be considered to address the matter.
On 20 January 2021 the school contact notes recorded that Matthew’s grade 1 class teacher from 2020 sent an email to Eliza saying that everyone at the school was hoping to see Matthew back when school returned on 27 January 2021.
On 20 January the school contact notes recorded that Eliza replied saying that Matthew would not be returning to the primary school.
On 20 January 2021 Eliza on behalf of Matthew had a telephone consultation with Dr Ketteridge. He sent a letter to Dr Ranasinghe reporting on the consultation. He recorded the following.
Eliza said that the blood tests had not been undertaken because Matthew had a needle phobia. Dr Ketteridge observed that the medical staff at the Hospital previously reported that they had no difficulties obtaining blood from Matthew. Eliza said that she had not started Matthew on vitamin D supplements because he refused to take tablets. Dr Ketteridge suggested liquid vitamin D supplements but Eliza said that she had made an appointment with a dietician. Dr Ketteridge also stressed the importance of adequate vitamin A intake in Matthew’s diet.
Dr Ketteridge reiterated that the metabolic investigations had not confirmed a metabolic diagnosis, all that Matthew needed was a fasting plan and there was no medical reason to stop him going back to school. Eliza said that Matthew had been banned from attending the primary school or the hospital school. Dr Ketteridge made attempts to clarify this with Eliza, but this was difficult. He recommended that Eliza take Matthew back to see Dr Ranasinghe. Dr Ketteridge said that, from a metabolic perspective, they had done sufficient investigations and no further investigations were required, although he would follow up the mitochondrial DNA specific mutations.
After the consultation, Dr Ketteridge spoke to the hospital school principal, who said that Matthew was still able to attend the hospital school and Eliza had said that she could not bring him to school because she was once again living out of Adelaide.
On 22 January 2021 the school contact notes recorded that an officer from Student Support Services at the Education Department sent an email to Eliza asking whether Matthew would continue at the original primary school or she was looking to enrol him elsewhere.
On 28 January 2021 the school contact notes recorded that Matthew did not turn up at the primary school on the first day of term on the previous day or on that day.
On 28 January 2021 the school contact notes recorded that Eliza sent an email in reply to the 22 January 2021 email saying that the hospital school principal had told her that the previous officer from Student Support Services had insisted that Matthew change schools. She said that they had waited nine months to return to the original primary school.
On 10 February 2021 Eliza and Matthew did not attend the appointment with Dr Ranasinghe. She spoke to Eliza by telephone to discuss Matthew’s progress. She wrote a letter to Dr Ton reporting on the discussion. She recorded the following. Eliza was unhappy about the service they had received from the Women’s and Children’s Hospital and said that Matthew still did not have a diagnosis. She said that Matthew was unable to attend school because the hospital did not arrange a care plan to manage his symptoms at school. She said that the metabolic team found no specific metabolic cause of Matthew’s symptoms and advised her to follow up with Dr Ranasinghe. Dr Ranasinghe said that she would find out about the recent investigation results and telephone Eliza in a week.
On about 17 February 2021 Dr Ranasinghe telephoned Eliza. She reported on the discussion in the same letter to Dr Ton dated 24 February 2021. She recorded the following. She told Eliza that, according to Dr Ketteridge, Matthew had slightly abnormal immune function tests and nutritional screen. The Hospital’s immunology and rheumatology consultants were happy to see Matthew if symptoms and abnormalities persisted. Dr Ranasinghe had sent a referral to the gastroenterology team. At that point, Eliza became angry and refused to follow any of the recommendations. Eliza said that she was recording the conversation and was going to complain to the Minister. Dr Ranasinghe told Eliza that, as the therapeutic relationship had broken down, she could not continue as Matthew’s paediatrician. Eliza said that she was going to seek a second opinion from a different paediatrician.
On 18 February 2021 Eliza attended a telephone consultation with Ms Hodson of Sonder. Ms Hodson made notes of the consultation. Ms Hodson recorded that Eliza said that she was suing the Women’s and Children’s Hospital and the Education Department and that she had severe post traumatic stress syndrome.
On 23 February 2021 Dr Ranasinghe sent a letter to Eliza saying that, as the therapeutic relationship had broken down, she could not continue as Matthew’s paediatrician.
On 23 February 2021 Eliza took Matthew to the local medical practice. They saw Dr Ton. She recorded the following. Eliza said that Matthew has multiple episodes per day of ketotic hypoglycaemia. Eliza complained that there had been no actuation of health plans for Matthew and everyone had failed to provide the action plan he needed. She complained about Dr Ranasinghe, Dr Ketteridge and Ms James-Valentine and the medical practice. She said that she was suing the Hospital, the school and Dr Ranasinghe. She said that she was not willing to take Matthew back to school until there was a plan in place.
On 23 February 2021 Dr Ton spoke by telephone to Dr Ranasinghe. Dr Ton recorded the following. Dr Ranasinghe said that she performed a thorough assessment at the initial appointment. She referred Matthew into the Women’s and Children’s Hospital Genetic Unit at Eliza’s request but this was denied because the main concern was ketosis, therefore they recommended referral to the Metabolic Unit. That Unit uncovered low vitamin A, low vitamin D, low iron and abnormally high immunoglobulin. Matthew’s EEG was normal. She agreed with Dr Ton that Munchausen’s by proxy needed to be considered. She said that there was no therapeutic relationship and therefore she was not able to see Matthew anymore. A referral to another general paediatrician was not necessary as long as someone was overseeing Matthew’s care.
On 26 February 2021 the school contact notes recorded that the primary school principal was told by the officer from Student Support Services that Eliza refused to meet or have a phone conversation, she was dealing with the complaints unit and she was threatening legal action.
On 3 March 2021 Eliza took Matthew to the local medical practice. They saw Dr Ton. She recorded the following.
Eliza said that Matthew had not attended school since March 2020 and she was home schooling him. This was because the teacher made him do physical exercise when he was showing symptoms of hypoglycaemia/ketosis and she felt he was not safe there. She said that she wanted Matthew to be able to check his own blood sugar level before he returned to school. Dr Ton observed that a letter from the metabolic unit in 2020 stated that this was inappropriate.
Dr Ton told Eliza that she supported Matthew going back to school but Eliza refused, saying that returning him to school “will not happen”. Dr Ton said that a referral to Women’s and Children’s Hospital dietitians was more appropriate but needed to come from the Metabolic Unit and in the meantime Dr Ton provided a referral to a dietician, Ms Smart, under a care plan. Dr Ton also provided a referral to Praesidium Psychology.
Dr Ton told Eliza that further abuse of the practice’s staff would not be tolerated and would result in the practice declining future consultations and assisting her to find another practice.
On 5 March 2021 Dr Ton telephoned the principal of the Women’s and Children’s Hospital school. Dr Ton recorded the following. The principal said that Matthew loved education at the school. He never witnessed a hypoglycaemic episode when Matthew was at the school. Dr Ketteridge had confirmed that blood sugar level tests were not required. It was made clear to Eliza that Matthew was welcome back at the hospital school. When they attempted to transition Matthew back to a community school, Eliza made threats of legal action.
On 16 March 2021 Eliza took Matthew to see Ms Smart. Ms Smart sent a letter to Dr Ton reporting on the consultation. She recorded the following. She advised Eliza that Matthew should commence a vitamin D supplement and increase his vitamin A intake. Eliza said that she preferred that Matthew obtain vitamin A from food. Ms Smart made an appointment to see Matthew again.
Ms Smart subsequently sent a letter to the Department reporting that Eliza cancelled the second appointment and did not make any further appointment.
In about April 2021 Eliza consulted Dr Borg at a different local medical practice to that which she had been consulting up to March 2021. Dr Borg gave to Eliza a referral to Dr Shannon Harris, a paediatrician at Adelaide Paediatrics.

On 7 April 2021 Dr Harris sent a letter to Dr Borg reporting on her consultation with Eliza and Matthew. She reported amongst other things that Eliza said that Matthew had not been to school for at least the last 12 months because of her concerns over their inability to do blood glucose level testing. Eliza expressed dissatisfaction at length with Matthew’s medical treatment.
On 22 April 2021 there was a case conference between Women’s and Children’s Hospital staff (Social Work, Paediatric Department, Metabolic Clinic and Child Protection Services) and Department staff. The Department staff requested an interim forensic medical report from Dr Janine Tee, a forensic paediatrician at the Hospital’s Child Protection Services.
On 28 April 2021 Dr Harris sent a letter to Dr Borg reporting on her consultation with Eliza and Matthew on that day. She reported that she looked at Matthew’s glucometer, which did not contain many blood glucose level readings, but all of them were ranging between four and six, which was reassuring. She attempted to reassure Eliza about the raised IgG4. She reiterated the importance of trialling a multivitamin to increase Matthew’s vitamin A and vitamin D but Eliza was resistant.
On 6 May 2021 Dr Tee provided an interim medical report. She expressed opinions that:
1.Eliza had fabricated or exaggerated in relation to low blood sugar levels, immune disease, allergies and needle phobia in respect of Matthew;
2.Eliza had neglected Matthew’s needs in relation to education, medical (vitamin A, vitamin D and immunisations), and disengagement from services;
3.Eliza had caused psychological harm to Matthew by making threats of violence in his presence and displaying poor mental health;
4.the circumstances were expected to cause harm and could result in lifelong significant impairments to Matthew’s development;
5.normalisation of Matthew’s daily activities should be prioritised, including schooling and cessation of unnecessary testing and illness promotion by Eliza.
On 13 May 2021 a Social Worker – Truancy at the Department for Education Student Support Services sent a letter to Eliza stating that, as a result of Matthew’s non-attendance at school since March 2020, she was in breach of her legal obligations under the Education and Children’s Services Act 2019 (SA) (the Education Act). She said that the education options were face-to-face learning at school or home education only if approved by the Department.
Between 4 June 2021 and 27 June 2022 a series of reports were authored by a social worker and approved by a supervisor at the Department in relation to Matthew (the Department reports). Initially Claire Mazuran was the case manager assigned to Matthew. On 13 July 2021 the case was reallocated to a different district office and Laura Tschirn became the (senior) case manager assigned to Matthew.
The Department reports recorded that on 17 May 2021 Department workers attended unannounced at Eliza’s home in relation to child protection concerns and she refused to engage.
On 17 May 2021 Dr Daina Murtagh, Child Protection Registrar in Child Protection Services at the Women’s and Children’s Hospital, sent an email to, amongst others, Dr Ketteridge, Dr Harris and Dr Jenny Harrington, the Women’s and Children’s Hospital endocrine consultant. The email reported the outcome of a meeting with the email recipients earlier on that day. It reported that overall, Matthew had no medical diagnoses, apart from mildly low vitamin A and D levels. It reported that the aim was to normalise Matthew’s activities and have him re‑engage with school. It reported that Dr Harris would, amongst other things, revise the school health plan, noting that nothing prohibited Matthew’s return to school and normalisation of his activities.
On 19 May 2021 Dr Harris sent a letter to Dr Borg reporting on her consultation with Eliza and Matthew on that day by telehealth. She reported the following.
Eliza said that all blood glucose level tests had been over four, which Dr Harris considered was reassuring. Dr Harris reported that she had had a conversation with Dr Harrington, who did not think that there was an underlying endocrine issue and they had therefore cancelled Matthew’s upcoming November appointment, about which Eliza was angry.
Dr Harris referred to the meeting on 17 May 2021. She said that the main concern was around over-medicalisation with the aim being to normalise Matthew and get him back to school. However, Eliza was still adamant that Matthew would not be returning to school.
Dr Harris also sent an email to the attendees at the 17 May meeting. She said that Eliza said that she had no support from anyone, poor communication from all of her health providers, and she wished to sue the Women’s and Children’s Hospital. She said that she was working on a healthcare plan and would post it to Eliza and email to the attendees when completed.
The Department reports recorded that on 21 May 2021 a letter was sent to Eliza inviting her to attend a meeting with Department workers but she telephoned saying that she was not going to engage.
The Department reports recorded that on 27 May 2021 Eliza telephoned the Department and advised that she refused to engage.
On 2 June 2021 Dr Harris sent a letter to Eliza in response to a letter of complaint from Eliza dated 19 May 2021. She said amongst other things that Dr Harrington did not believe that there was any evidence of an underlying endocrine disorder. She said that she was in the process of writing a health care plan to give to Eliza and Matthew’s school if required. She said that she and his specialists saw no medical reason why he could not return to school. She said that they did not have any evidence of a diagnosable disease in Matthew. She noted that it was evident that Eliza had lost faith in her care and that the therapeutic relationship had broken down. It was therefore inappropriate for her to continue to care for Matthew.
I observe that Eliza contends that Dr Harris completed the health care plan and sent it to the Department but it was not sent to her. There is no ground of appeal relating to this contention. In any event, there is no evidence that this occurred.
The Department reports recorded that on 2 June 2021 Department workers, in company with South Australia Police officers, attended at Eliza’s home and she refused to engage.
The Department reports recorded that the acting supervisor determined to exercise the power under section 41(1) and (5) of the Act to remove Matthew to protect him from serious harm. Eliza gave Matthew to her neighbour and her mother collected him. Police officers later located Matthew at Eliza’s parents’ house and he was removed.
Dr Tee’s report dated 20 July 2021 referred to below recorded that Matthew was placed with an emergency foster carer on 2 June 2021 and then placed in a residential care facility with Junction Australia on 11 June 2021.
It is evident from the evidence adduced at the hearing that there were three boys (including Matthew) living in the house that comprised the residential care facility and that Junction Australia employed caregivers at the house to care for those boys.
On 4 June 2021 the Chief Executive filed in the Youth Court an application that Matthew be placed under the guardianship of the Chief Executive for three months pursuant to section 53(1)(e) of the Act. The application was subsequently amended to seek a guardianship order for six months. The application was listed for an initial hearing on 9 June 2021.
On 9 June 2021 a Magistrate adjourned the matter to 24 June 2021 and made an interim order under subsections 53(2) and 56(3) of the Act that Matthew be placed under the guardianship of the Chief Executive for the period of the adjournment.
On 9 June 2021 Eliza instituted a habeas corpus proceeding in the Supreme Court against the Chief Executive and the Police Commissioner challenging the legality of the removal of Matthew on 2 June 2021.
On 22 June 2021 Eliza filed in the Youth Court an application that the 9 June 2021 interim order be revoked.
On 23 June 2021 a second Magistrate listed Eliza’s revocation application for argument on 30 June 2021 and made an interim order that Matthew be placed under the guardianship of the Chief Executive for the period of the adjournment.
On 30 June 2021 the second Magistrate heard argument on Eliza’s revocation application and the Chief Executive’s application for a further interim order. The Magistrate dismissed Eliza’s application, adjourned the hearing to a pre-trial conference on 27 July 2021 and made an interim order that Matthew be placed under the guardianship of the Chief Executive for the period of the adjournment. Thereafter the proceeding was adjourned from time to time with a series of interim orders being made.
In or before July 2021 Matthew was referred to Dr Patrick Quinn, who was head of the Department of Allergy & Clinical Immunology at the Women’s and Children’s Hospital.
On 7 July 2021 Dr Tee saw Matthew to perform a forensic medical assessment. In her final report, Dr Tee recorded that Matthew was engaging and chatty during the assessment, and said that he had not experienced any hurt in his body since being in care, considered himself mostly healthy, recalled experiencing one “hypo” when he was six years old and was relatively keen to attend school next term.
On 13 July 2021 Dr Quinn sent an email to the Department stating that he saw Matthew on 7 July 2021 and wanted to organise blood tests and an abdomen ultrasound.
On 20 July 2021 Dr Tee provided a final medical report. She expressed largely the same opinions as in her interim report.
The Department report dated 23 July 2021 recorded that Matthew had by then commenced full-time attendance at primary school.
On 24 July 2021 Jamie Witt, a psychologist, undertook a Personality Assessment Inventory in respect of Eliza based on her completion of a questionnaire.
On 27 July 2021 the proceeding was listed for trial on 23 September 2021.
From about August 2021 Eliza was assisted in her dealings with the Department by Ro Timms. Mr Timms attended three meetings that Eliza had with Ms Tschirn and Ms Nicola, the first of which was on 20 August 2021.
On 30 August 2021 a Judge of the Supreme Court heard an application by the Chief Executive for summary dismissal of Eliza’s habeas corpus proceeding and granted that application. The Judge held that Matthew was under the guardianship of the Chief Executive pursuant to the interim orders made by the Youth Court, which were not dependent upon the lawfulness of the removal on 2 June 2021. Eliza subsequently sought leave to appeal to the Court of Appeal against that summary dismissal (the habeas corpus appeal).
On 6 September 2021 Professor Jon Jureidini interviewed Eliza. In his report referred to in the next paragraph, he summarised the interview.
On 13 September 2021 Professor Jureidini provided a medical report comprising a mental health assessment of Eliza.
On 13 September 2021 Dr Quinn sent an email to the Department saying that the recent investigations were normal, except for the vitamin D deficiency which was already known and house dust mite and mould allergy indicators.
On 22 September 2021 Eliza commenced seeing Dr Amanda Shea Hart. Dr Shea Hart is a private practice child and family consultant and therapist. Amongst other things she has a Bachelor of Social Work and is an Accredited Mental Health Professional with the Australian Association of Social Workers.
On 23 September 2021 the proceeding came on for trial before a third Magistrate. Eliza was represented by her solicitor, who appeared also as her counsel. The Magistrate addressed counsel in the absence of the parties.
The Magistrate expressed the opinion that Eliza’s solicitor had misled the Court in two respects at the previous hearing on 21 September 2021. The matter was adjourned for two hours for the solicitor to consider his position and to inform Eliza. When the matter resumed, the solicitor sought and was granted time to make a responding submission concerning his own conduct and leave to withdraw as Eliza’s lawyer. The trial date was vacated and the proceeding was adjourned to fix a new trial date. The proceeding was subsequently listed for trial to commence on 20 October 2021.
On 19 October 2021 Eliza filed a notice of appeal to the Court of Appeal against the order made by the third Magistrate on 23 September 2021 which she characterised as “an order dismissing her counsel” (the counsel dismissal appeal).
On 20 October 2021 the proceeding came on for trial before a fourth Magistrate (the trial Magistrate). Eliza sought an adjournment of the trial pending the hearing and determination of her appeal. The Magistrate granted the application and adjourned the proceeding to a status conference on 4 November 2021. On 19 November 2021 the matter was listed for trial to commence on 14 February 2022.
Mr Vajdic recorded in his report dated 12 January 2022 referred to below that between 27 October 2021 and 2 November 2021 Zane visited South Australia and had multiple face-to-face visits with Matthew.
On 8 November 2021 the Court of Appeal struck out the notice of appeal in Eliza’s counsel dismissal appeal as incompetent because the Magistrate had not given a “judgment” within the meaning of section 22 of the Youth Court Act 1993 (SA) dismissing Eliza’s counsel.
On 8 December 2021 Eliza filed an interlocutory application in her habeas corpus appeal seeking amongst other things an interlocutory injunction restraining the Department from removing Matthew from the State.
The Department reports recorded that between 13 December 2021 and 15 December 2021 Matthew visited Zane in Queensland.
On 16 December 2021 Dr Quinn provided a medical report. He recorded the following. He had seen Matthew on that day and had a telephone consultation with Eliza on 6 December 2021. Matthew appeared to be systemically well. There was no clinical evidence of IgG4-related disease and his raised IgG4 was not of clinical significance. Since returning to school he had not had a significant or unusual infection burden and there was no evidence of immunodeficiency. Matthew should continue on multi-vitamins and his diet should be unrestricted.
On 16 December 2021 the Court of Appeal refused leave to appeal and dismissed Eliza’s habeas corpus appeal, upholding the reasoning of the Judge.
The Department reports recorded that between 20 December 2021 and 4 January 2022 Matthew visited Zane in Queensland and between 4 January 2022 and 11 January 2022 Zane visited South Australia and had multiple face-to-face visits with Matthew.
On 21 December 2021 Eliza filed an interlocutory application in her habeas corpus appeal seeking to invoke the parens patriae jurisdiction of the Court in respect of Matthew and seeking amongst other things an order that Matthew be returned to her and not be removed from the State. I refer to the proceeding in the habeas corpus appeal proceeding from this point onwards as the parens patriae proceeding.
On 7 January 2022 Dr Shea Hart sent to Eliza’s solicitors a parenting capacity assessment report. At that stage she had seen Eliza on 10 occasions but had not seen Matthew. She recommended that Matthew be reunified with Eliza and recommended steps if the Supreme Court ordered commencement of a reunification process of Matthew with Eliza.
On 12 January 2022 Srdjan Vajdic provided to the Department a psychological report which he said was a Parenting Capacity Assessment under subsection 36(2) of the Act. Mr Vajdic is a clinical psychologist and Manager of the Psychological Services Section in the Department. He assessed the parenting capacity of Eliza and Zane. He recorded the following.
Mr Vajdic interviewed and tested Matthew on 6 January 2022 and observed him at his placement on 7 January 2022. He interviewed Zane on 6 January 2022 and observed his and Matthew’s interactions at Matthew’s placement on 7 January 2022. Eliza did not attend a scheduled interview on 7 January 2022. Matthew expressed unwillingness to attend observation of him and Eliza interacting.
Mr Vajdic expressed a positive opinion in respect of Zane’s parenting capacity and a negative opinion in respect Eliza’s parenting capacity.
On 28 January 2022 and 3 February 2022 Dr Shea Hart saw Matthew.
On 25 January 2022 Mr Vajdic provided an addendum report. On 26 April 2022 he provided a further addendum report.
On 3 February 2022 Eliza filed in the Youth Court an interlocutory application seeking amongst other things that the 9 June 2021 interim order be discharged and that the proceeding be dismissed forthwith on the ground that the 2 June 2021 removal was unlawful and consequentially the proceeding should be summarily dismissed.
On 9 February 2022 the Department requested Rachel Jolly to provide therapeutic support for the purpose of re-establishing a functional relationship between Matthew and Eliza and supporting a growing of the relationship between Matthew and Zane. Ms Jolly is a child and family consultant/therapist and has Bachelor of Arts (majoring in Psychology and Visual Arts) and Bachelor of Social Work degrees.
On 14 February 2022 the proceeding came on for trial before the trial Magistrate. The Magistrate heard and dismissed Eliza’s 3 February 2022 interlocutory application. The Magistrate heard and dismissed Eliza’s application to adjourn the trial pending an appeal against that dismissal.
The Magistrate heard opening addresses by counsel for the Chief Executive and by the independent solicitor for the child. Volume 1 of the trial book prepared by the Chief Executive containing various documents was tendered and admitted (exhibit CE1). The Magistrate heard a brief opening address by Eliza. The Magistrate then adjourned the trial to 2 March 2022 for the commencement of evidence because Eliza was in isolation and present only by telephone due to COVID-19 issues. Thereafter the trial proceeded on various days between 2 March 2022 and 5 August 2022 as described below.
On 21 February 2022 a Judge of the Supreme Court in the parens patriae proceeding granted an interlocutory injunction restraining the Department from permanently relocating Matthew to Queensland for the purpose of full-time residence with Zane until further order. It was also ordered that the Department urgently facilitate reunification therapy with a qualified expert in family therapy, involving the child and his parents so as to endeavour to quickly restore regular weekly face-to-face contact between Eliza and Matthew as well as between Matthew and Eliza’s parents and Brandon.
On 23 February 2022 the Department requested Ms Jolly to facilitate the reunification therapy ordered on 21 February 2022.
On 18 March 2022 the Judge of the Youth Court dismissed Eliza’s appeal against the dismissal by the Magistrate of her 3 February 2022 interlocutory application.
On 31 March 2022 Ms Jolly provided a therapeutic progress report. She reported on the steps taken to reconnect Matthew with Eliza (and with his brother and grandparents), said that they had been successful and recommended that reunification therapy not be undertaken until there was certainty as to whether Matthew would return to Eliza’s care.
On 30 August 2022 Dr Shea Hart provided a document entitled Letter of Support to Eliza.
On 7 September 2022 Ms Jolly provided a report to the Department in respect of a session with Matthew and Eliza on 6 September 2022 and answering four specific questions.
On 1 October 2022 Ms Jolly provided a further report to the Department.
On 11 October 2022 the Magistrate delivered reasons for judgment granting the Chief Executive’s application.
The Youth Court trial
At the trial, the Chief Executive was represented by the Crown Solicitor. Two different counsel appeared at different times on her behalf. Graeme Hemsley acted as independent solicitor for Matthew. On occasion he appeared as counsel but principally counsel instructed by him appeared. He supported the application. Eliza was self-represented and opposed the application. Zane was self-represented, had indicated that he consented to the application and did not propose to participate in the hearing, appeared at the outset of the hearing for the opening addresses and did not appear thereafter.

The trial commenced on 14 February 2022 but as noted above, after opening addresses, was adjourned to 2 March 2022 because Eliza was in isolation due to COVID-19 issues. 2, 3, 22 and 23 March 2022 were set for the completion of the trial.
On 2, 3, 22 and 23 March 2022, evidence was given by the five witnesses called by the Chief Executive and the Magistrate asked questions of Matthew. The Chief Executive closed her case. The trial was adjourned because Eliza had not completed compiling the documents she wished to tender and did not wish to commence her oral evidence until they were available. The matter was adjourned to a status conference. 30 and 31 May 2022 and 2 and 17 June 2022 were subsequently set for completion of the trial.
On 30 and 31 May 2022 and 2 and 17 June 2022 evidence was given by Eliza, Ms Jolly and two lay witnesses called by Eliza. 14 and 15 July 2022 were set for completion of the trial.
On 14 and 15 July 2022 evidence was given by Dr Shea Hart and three lay witnesses called by Eliza. On 18 July 2022 Eliza was unwell and appeared by telephone. She said that her two remaining witnesses were unavailable to give evidence on that day. On 19 July 2022 the trial was adjourned to 5 August 2022. The Magistrate made it clear that the trial must be completed on that date.
On 5 August 2022 evidence was given by Dr Shea Hart and one lay witness called by Eliza. The parties gave brief oral closing addresses. The Magistrate, noting that the independent solicitor for the child had already filed a written closing address, directed that the Chief Executive file a written closing address by 19 August 2022, Eliza file a written closing address by 26 August 2022 and the independent solicitor for the child file any written closing address in reply by 30 August 2022. The Magistrate reserved judgment and adjourned the proceeding to 16 September 2022 to deliver judgment.
On 8 September 2022 Eliza filed an interlocutory application seeking leave to reopen her case to tender Dr Shea Hart’s 30 August 2022 Letter of Support and Ms Jolly’s 7 September 2022 report and call them to give oral evidence. On 14 September 2022 the Magistrate heard Eliza’s application. She admitted into evidence Ms Jolly’s recent report but refused leave otherwise to Eliza to reopen her case.
On 16 September 2022 Eliza did not attend at the hearing. The Magistrate did not deliver reasons for judgment as previously foreshadowed. The Magistrate sought brief submissions from the other parties on a consequential matter; extended the time for Eliza to file a written closing address to 30 September 2022; adjourned the proceeding to 11 October 2022 to deliver judgment; and directed that Eliza be sent a copy of the transcript.
On 11 October 2022 Eliza served on the other parties a written closing address shortly before the Magistrate delivered judgment.
The Chief Executive called Ms Mazuran and Ms Tschirn to give evidence. Affidavits of Ms Tschirn filed and transcripts of evidence of Ms Tschirn given in the parens patriae proceeding were tendered by Eliza.
The Chief Executive called Dr Tee, Professor Jureidini and Mr Vajdic to give evidence and tendered their reports. Transcripts of evidence of Mr Vajdic given in the parens patriae proceeding were tendered by Eliza.
The Chief Executive tendered various documents, most of which were contained in the Chief Executive’s trial book.
Eliza gave evidence and tendered several affidavits affirmed by her and filed in the Youth Court and in the parens patriae proceeding.
Eliza called Brandon to give evidence and tendered an affidavit affirmed by him. Eliza called three other lay witnesses, Christine Bricknell, Kay McKenzie and Devi O’Donnell. They are each family friends of Eliza. Eliza called Mr Timms to give evidence and tendered records made by him of meetings with the Department.
Eliza called Ms McIntosh to give evidence and tendered an affidavit affirmed by her on 26 August 2021.
Eliza called Ms Jolly to give evidence and tendered reports by her dated 31 March 2022 and 7 September 2022 and the transcript of her evidence given in the parens patriae proceeding.
Eliza called Dr Shea Hart to give evidence and tendered a report by her dated 7 January 2022, her case notes and the transcript of her evidence given in the parens patriae proceeding.
Eliza tendered various documents, most of which were contained in her four volume trial book (exhibit MO1), and which included documents filed in the parens patriae proceeding.
The Magistrate’s reasons
The Magistrate summarised the positions of the parties at paragraphs 1 to 18 of her reasons for judgment.
The Magistrate addressed the relevance of the lawfulness of Matthew’s removal pursuant to section 41 of the Act at paragraphs 20 to 25.
The Magistrate briefly summarised the evidence of Ms Jolly at paragraphs 26 to 30 and the evidence of Dr Tee at paragraphs 31 to 33.
The Magistrate summarised evidence based on medical and educational records relating to Matthew’s health and attendance at school at paragraphs 35 to 73.
The Magistrate summarised the evidence of Professor Jureidini at paragraphs 77 to 92 and the evidence of Eliza at paragraphs 93 to 105.
The Magistrate found that Matthew had suffered harm and there was a likelihood that he would suffer harm in future in the care of Eliza and a guardianship order should be made:
106Although the Court received and heard extensive evidence, and from many witnesses, there is essentially little dispute about the facts and the context in which the child protection concerns arise.
107The central issues is [sic] whether [Matthew] has been harmed by [Eliza’s] reporting of [Matthew’s] medical conditions and symptoms to professionals and the school, her actions in pursuing assessment and testing in order to get a diagnosis, and by his not attending school since March 2020.
108As discussed, [Eliza’s] position is that her concerns about [Matthew’s] blood sugar levels and other issues relating to his health were justified because of what she and other family members observed. She says she was following the medical advice.
109She says that for related reasons she was justified in withdrawing [Matthew] from school and that it is ultimately her choice to do so.
110In Dr Tee’s and Professor Jureidini’s opinions [Eliza’s] actions have directly compromised [Matthew’s] health and schooling in particular.
111I consider that the evidence demonstrates that [Matthew] has suffered harm, and that there is a likelihood he will suffer harm, if he is in [Eliza’s] care for the following reasons.
112Dr Tee and Professor Jureidini each undertook a through [sic] examination of the available information and reached logically sound opinions which were not undermined in any relevant way. I accept their opinions, which are backed by extensive medical experience in a child protection context.
113The evidence establishes that [Eliza] has asserted various conditions and symptoms that are without medical foundation. The evidence is also that [Matthew] has not demonstrated any of the symptoms reported by [Eliza] since his removal from her care and is considered to be well, except he has allergy to mould and house dust mites.
114Professor Jureidini maintains that [Eliza] meets the diagnostic criteria for FDIOA even though she was not expressly told that ‘there is nothing wrong with [Matthew]’ and the medical professionals were continuing to refer [Matthew] for tests and assessment.
115He said that an essential feature of the diagnosis is there be some gratification of the perpetrator from engagement with the medical system, and that whilst in [Matthew’s] case there is little evidence of [Eliza], for example, seeking multiple appointments, doctor shopping, or engineering inpatient stays, ‘there is strong evidence of gratification [for Eliza] from coming into conflict with medical and other authority.’
116I accept Professor Jureidini’s expert opinion. His credentials for giving it are self-evident and nothing that was put to him caused him to alter his view. Further, whilst he was not asked about it by [Eliza], it seems to me that [Eliza’s] advice that she had not told him she accepted that [Mathew] is healthy and does not require any medical treatment (that is, she does not accept that [Matthew] is healthy), would serve only to reinforce his opinion.
117Also, the context in which the doctors were arranging further testing is relevant. It is evident that the further testing arose from [Eliza’s] own descriptions that she was giving the doctors about [Matthew’s] significant symptoms and their family history when his clinical presentation did not otherwise raise any significant medical concern. [Eliza] was presenting as very anxious about [Matthew’s] health. It would not seem surprising in those circumstances that the doctors were industrious in their efforts to identify any underlying cause for his varied symptoms, or at least to allay her concerns by having testing the results of which they expected would rule out any medical problem.
118Further, there is no suggestion that any medical professional had conveyed to [Eliza] that [Matthew] could not go to school for medical or health-related reasons. To the contrary, it is evident from the information addressed above that [Eliza] was being encouraged to return him to school, and offered ways to assist with that. [Eliza] was resistant.
119In any event, as discussed, in Professor Jureidini’s opinion the primary concern is the impact of [Eliza’s] behaviour on [Matthew], rather than whether the case meets the criteria for FDIOA.   Again, I accept the evidence of Dr’s Tee and Professor Jureidini’s opinions that [Matthew] has been harmed by these actions, for the reasons they have given, particularly depriving him from attending school and the impact of [Eliza’s] behaviour on [Matthew’s] wellbeing.
120Professor Jureidini referred to [Matthew] being deprived of going to school as being one of his major areas of concern. I have referred to his evidence about that. He maintained his view when [Eliza] told him she had been providing [Matthew] with home schooling. Professor Jureidini noted that [Eliza] did not have the necessary exemption to home school. He said that going to school was about more than academic achievements, including ‘the socialisation, learning to deal with other people’s needs as well as your own, dealing with frustrations in social situations, these are all critical learning experiences.’
121Dr Tee said that ‘unnecessary exclusion can be isolating for a child and limits the child’s education and limits the child’s education [sic] and development ways … which can result in significant impairments to his psychological and physical development in the long term.’
122Section 18 of the Safety Act provides that a child of compulsory school age who has been persistently absent from school without satisfactory explanation for the absence will be taken to be at risk.
123I do not consider any of [Eliza’s] explanations for [Matthew] being absent for medical reasons to be ‘satisfactory’, in circumstances where I have found that the evidence establishes her reports of [Matthew’s] various conditions were not supported by medical opinion, there is no evidence of medical advice that [Matthew] could or should not attend school, and she did not provide supporting medical material as requested by the school.
124In my view, the evidence shows [Eliza’s] decision that [Matthew] would not return to school was likely driven by her view that they may not follow what she required in terms of management of [Matthew’s] conditions.
125Dr Tee reviewed the various rationales [Eliza] gave for [Matthew] not attending school and her lack of confidence in their ability to manage her concerns about [Matthew’s] low blood sugar levels. Dr Tee said that ‘there was no documentation to support these concerns and complete withdrawal from school was an extreme response to the mother’s concerns’.
126Otherwise, [Eliza’s] claim at the trial that it is her ‘parental right’ to home school her child and that she did not have to present him to school is plainly incorrect.
127In relation to the impact of [Eliza’s] behaviour on [Matthew], Dr Tee said, ‘psychological harm may occur when abnormal parental healthcare seeking or illness behaviour interferes with daily life and distorts a child’s view of their own health.’
128There is evidence that [Matthew] does perceive he is unwell, including [Eliza’s] advice to Dr Ranasinghe in about March 2020 that [Matthew] was worried about becoming unwell, raising concerns for his mental stability.
129A report from Ms Jolly also includes that [Matthew] recounted a ‘secret belief’ that he was living a mirror image life to that of his brother, and his fear was he will eventually lose his memory like [Brandon]. Ms Jolly reported that [Matthew’s] belief is entrenched and will require therapeutic assistance to ameliorate his worry.
130In Dr Tee’s opinion [Eliza’s] action [sic] have clearly resulted in restriction of [Matthew’s] participation in normal activities, exclusion from his peers and prolonged interruption of education.
131In circumstances where [Eliza] maintains that [Matthew’s] medical status has not been adequately investigated despite the medical opinions that further investigation is not warranted and that he is well, and her views about home schooling, including that it is a lifestyle choice, I am satisfied that there is a risk of further harm should he be returned to her care.
132I consider that [Eliza’s] position on these matters at the trial, which I have discussed, is consistent with Professor Jureidini’s opinion that she remains unable to acknowledge any concerns about her parenting of [Matthew] and would likely not engage with meaningful therapy.
133Whilst Dr Amanda Shea Hart, a Child and Family Consultant and Therapist who prepared a parenting capacity assessment and with whom [Eliza] participates in therapeutic sessions, told the Court that [Eliza] had made progress in their sessions, in my view it is evident that any insight is limited.
134Dr Shea Hart said [Eliza] ‘had developed insight into the adverse effects on [Matthew] by being angry for standing up for his needs.’   Dr Shea Hart said in answer to a question by [Eliza], ‘[y]ou were hurt by other professionals not understanding [Matthew’s] needs and you may have raised your voice a bit in front of [Matthew] to stand up for his rights but you’ve made progress in remaining calm but clear in front of [Matthew].’
135In relation to [Matthew] going to school, Dr Shea Hart told the Court that [Matthew] said he wants to go to school. She said [Eliza] told her that she would take [Matthew] to a suitable school if he was in her care.   When she was asked about what she understood [Eliza] meant by a ‘suitable school’, she said it depended on the standard of the learning and ‘the undertaking of his needs’.
136That indicates to me that [Eliza’s] view most likely continues to be that she may choose not to send [Matthew] to school if it does meet with her requirements, and that there is no legal requirement that she do so. She said that although she knew there was legislation that made it compulsory for children of school age to attend school, ‘compulsory doesn’t necessarily mean that its legal.’
137In summary, the evidence demonstrates [Matthew] has suffered harm and is likely to suffer harm if he is in [Eliza’s] care.
138In my view, the priority and principles of intervention in the Safety Act are best achieved by making an order that [Matthew] be placed under the guardianship of the Chief Executive for a period of six months pursuant to s 53(1)(e) of the Safety Act.
The appeal hearing
On 17 October 2022 Eliza filed a notice of appeal. The grounds of appeal were essentially generic with no specificity. For example, ground 1(a) was that the trial court failed to correctly inform herself of the factual accuracy of the evidence provided to court.
On 13 December 2022 the appeal was listed for hearing on 7 February 2023.
On 14 December 2022 Eliza filed an amended notice of appeal. The grounds of appeal were largely unchanged. The substantive differences related mainly to the orders sought.
On 6 February 2023, being the day before the appeal hearing, Eliza filed her written submissions on appeal.
On the morning of the hearing on 7 February 2023, Eliza filed amended appeal grounds. Although there was some overlap, the grounds were essentially recast from the beginning and generally contained specificity (although some grounds were generic or vague).
At the hearing of the appeal on 7 February 2023, it was agreed that the hearing should proceed despite the fact that the respondents did not have significant notice of the amended appeal grounds or written submissions of Eliza. The parties made oral submissions.
Eliza was given leave to make supplementary written submissions identifying 10 of what she considered to be the most egregious examples of the Magistrate refusing to allow, or improperly recasting, a question asked of a witness by her. The respondents were given leave to make supplementary written submissions on identified topics (subsequently supplemented by an overlooked topic) and Eliza was given leave to make supplementary written submissions strictly in reply.
At the hearing of the appeal, Eliza tendered and I received without objection the following documents:
·Ms Jolly’s 1 October 2022 report;[15]
·email correspondence between Eliza and the Youth Court in October 2022 including relating to Eliza’s interlocutory application dated 6 October 2022, amended interlocutory application dated 7 October 2022 and affidavit affirmed on 6 October 2022;[16] and
·a determination under subsection 36(2) of the Act by the Chief Executive of requirements for approved parenting capacity assessments dated 29 August 2018 as gazetted.[17]
[15] Annexure 7 to an affidavit by Eliza made on 12 December 2022.
[16] Annexure 6 to an affidavit by Eliza made on 12 December 2022.
[17] Annexure 11 to an affidavit by Eliza made on 12 December 2022.
I declined to receive the document entitled Clinical Services Capability Framework Child Protection Services issued by the State Government[18] because it was not tendered or received as an exhibit at the Youth Court trial.
[18] Annexure 14 to an affidavit by Eliza made on 12 December 2022.
On 13 February 2023 Eliza filed supplementary written submissions providing 10 examples in accordance with the leave granted at the hearing of the appeal.
On 20 February 2023 and 1 March 2023 the Chief Executive filed supplementary written submissions and on 2 March 2023 the independent solicitor for the child filed supplementary written submissions pursuant to the leave granted.
On 21 February 2023 Eliza was invited to file by 27 February 2023 a second set of supplementary written submissions in relation to 10 topics raised by her amended appeal grounds or her appeal submissions which had not been clearly addressed during the oral hearing. She filed a second set of supplementary written submissions in response to that invitation on 7 March 2023.
On 13 March 2023 Eliza filed supplementary written submissions in reply pursuant to the leave granted.
On 14 March 2023 the Chief Executive filed supplementary written submissions in response to Eliza’s second supplementary written submissions filed on 7 March 2023.
On 17 March 2023 I heard supplementary oral submissions including Eliza’s reply to the Chief Executive’s supplementary written submissions filed on 14 March 2023.
Eliza had a tendency to make voluminous submissions at large rather than by reference to grounds of appeal or the topics subject of leave to make supplementary submissions. It is impossible on appeal to deal with such submissions made at large. I have necessarily considered Eliza’s submissions in the context of her grounds of appeal.

In her dealings with the educators, Eliza advanced Matthew’s health as the reason why he was not attending at school. However, at the trial, both in her cross‑examination of Professor Jureidini and in her own evidence, she said that the reason why Matthew did not attend school was her own lifestyle choice to home school him. By reason of the operation of section 18(1)(e) of the Act, Matthew was to be taken to be at risk of harm because he was persistently absent from school without satisfactory explanation of the absence.
The expert evidence of Professor Jureidini and Dr Tee confirmed that Matthew suffered harm as a result of not attending school. Leaving aside academic progress, the evidence (which was not challenged in this respect) was that attending school is important for the social development of a child. In addition, in the absence of evidence that Eliza was following the prescribed curriculum, Matthew’s absence from school was detrimental to his academic progress.
Eliza refers to the statement by the Magistrate at paragraph 112 that “Dr Tee and Professor Jureidini each undertook a thorough examination of the available information”.
Eliza contends that this is an erroneous finding because the Magistrate did not identify what steps they took or how they were thorough. This contention does not raise an erroneous finding ground: at most it would raise an inadequate reasons ground. However, adequate reasons did not require the Magistrate to identify the steps taken by the experts. They were identified in the evidence given by the experts. It is apparent from their evidence that their examinations were properly characterised as thorough.
Eliza also contends that this is an erroneous finding because the Magistrate did not identify if the materials which the experts used to make their examinations were reliable, vetted, checked or qualified.
Again, this contention does not raise an erroneous finding ground: at most it would raise an inadequate reasons ground. However, adequate reasons did not require the Magistrate to identify these matters about the source materials. For the reasons given above, the source materials generally comprised business records and appeared on their face to be reliable. Further, in general terms, Eliza did not challenge the veracity of the source materials.
Eliza refers to the statement by the Magistrate at paragraph 112 that “Dr Tee and Professor Jureidini … reached logically sound opinions”.
Eliza contends that this is an erroneous finding because the Magistrate did not identify what those opinions are, how each witness reached those opinions or the events or assessments which underpinned those opinions.
This contention does not raise an erroneous finding ground: at most it would raise an inadequate reasons ground. However, the Magistrate had earlier summarised the evidence of Professor Jureidini at paragraphs 77 and following and the evidence of Dr Tee at paragraphs 31 and following. The Magistrate’s reasons were not inadequate in the respects suggested by Eliza.
Eliza refers in particular to a passage from the evidence in chief of Dr Tee in which she said that she had not received all the information that was relevant to the case at the time of her May 2021 report. However, Dr Tee said that this applied to her interim report in May 2021 and that was why the report was interim, in contrast to her final report in July 2021, which was prepared after she received further information.
Eliza also refers to a passage during the cross-examination of Dr Tee in which she admitted that she knew about a recommendation for further testing but omitted that from her reports. Eliza put to Dr Tee that Dr Harris had made a recommendation for Matthew to have a continuous glucose monitor. Dr Tee said that she was aware that there was a suggestion about whether a continuous glucose monitor would be useful and her understanding was that after discussion between Dr Harris and the endocrinologist, it was not considered to be useful. She said that she did not include this in her report. Given her answer, there was no significance in the non-inclusion of this matter in her report.
Eliza contends that Dr Tee when preparing her reports did not comply with the gazetted Approved Parenting Capacity Assessment criteria issued under subsection 36(2) of the Act because Dr Tee never interviewed Eliza or Matthew.
This contention is outside Eliza’s grounds of appeal and Eliza did not tender the Approved Parenting Capacity Assessment criteria at trial. In any event those criteria only apply to a mandatory approved parenting capacity assessment the subject of a direction by the Chief Executive to a parent or guardian, which did not apply to Dr Tee’s reports. Dr Tee did in fact interview Matthew before her final report.
Eliza makes a similar contention that Professor Jureidini did not comply with the gazetted Approved Parenting Capacity Assessment criteria because he never interviewed Matthew.
Again, this is outside the grounds of appeal but subsection 36(2) of the Act did not apply to Professor Jureidini’s report.
Eliza refers to the statement by the Magistrate at paragraph 112 that “Dr Tee and Professor Jureidini[‘s] … opinions … are backed by extensive medical experience in a child protection context.”.
Eliza contends that this is an erroneous finding because neither witness gave any evidence of the extent of their medical experience in a child protection context.
Dr Tee has been a fellow in Paediatrics of the Royal Australasian College of Physicians since 2009. She has worked in Child Protection Services at the Women’s and Children’s Hospital since 2008. She has been a Staff Specialist Paediatrician in Child Protection Services at the Women’s and Children’s Hospital since 2010. She has conducted over 1,000 forensic medical assessments of children with suspected physical or sexual assault, neglect or maltreatment. That experience was evidenced by her curriculum vitae which was tendered as part of the Chief Executive’s trial book and was also the subject of her evidence in chief. This clearly qualified as extensive medical experience in a child protection context.
Professor Jureidini has been an Accredited Child Psychiatrist with the Royal Australian and New Zealand College of Psychiatrists since 1987. In 1986 and 1987 he was a Fellow in Child Psychiatry at the New South Wales Institute of Psychiatry. In 1987 and 1988 he was a Clinical Associate at the Young People’s Unit in Edinburgh and then at the Adolescent Department of the Tavistock Clinic in London.
From 1988 to 1994, Professor Jureidini was Director, Adolescent Psychiatry at the Women’s and Children’s Hospital. From 1994 to 2012, he was Head of the Department of Psychological Medicine at the Women’s and Children’s Hospital with responsibility for liaison with Child Protection Services. From 2013 to 2021, he was Senior Psychiatrist in the Infant Therapeutic Reunification Service. In each of those three roles between 1988 and 2021, he was responsible for the assessment and treatment of parents who have maltreated children. That experience was evidenced by his report and his curriculum vitae which were tendered as part of the Chief Executive’s trial book and was also the subject of his evidence. This clearly qualified as extensive medical experience in a child protection context.
Eliza refers to the statements by the Magistrate at paragraphs 114 to 116 that “Professor Jureidini maintains that [Eliza] meets the diagnostic criteria for FDIOA even though she was not expressly told that ‘there is nothing wrong with [Matthew]’… He said that an essential feature of the diagnosis is there be some gratification of the perpetrator from engagement with the medical system…I accept Professor Jureidini’s expert opinion. His credentials for giving it are self-evident and nothing that was put to him caused him to alter his view”.
Eliza contends that this is an erroneous finding because Professor Jureidini said (as the Magistrate acknowledged at paragraph 115) that there was “little evidence of Eliza, for example, seeking multiple appointments, doctor shopping or engineering inpatient stays”.
However, Professor Jureidini himself said that, notwithstanding the fact that there was little evidence of that particular conduct, nevertheless he adhered to his diagnosis. The Magistrate was entitled to accept that evidence. The absence of a type of conduct that may be present when the diagnosis is applicable does not negate the possibility of a diagnosis when that particular type of conduct is absent.
In addition, the documentary evidence adduced at trial showed Eliza sequentially rejecting medical advice that Matthew did not have a serious medical condition, becoming angry with the doctor giving that advice and then turning to another doctor, where the same pattern occurred.
Eliza refers to the statement by the Magistrate at paragraph 115 that Professor Jureidini said that an “essential feature of the diagnosis is there be some gratification of the perpetrator from engagement with the medical system”.
Eliza contends that there was no evidence of such gratification.
However, in his report, Professor Jureidini said that there was strong evidence of gratification from coming into conflict with medical and other authority. The documentary evidence summarised in the Background section above demonstrated that Eliza repeatedly came into conflict with numerous medical and educational authorities in relation to Matthew’s medical condition. It was open to Professor Jureidini to form the opinion that Eliza obtained gratification from doing so, and it was open to the Magistrate to accept that opinion.
Eliza refers to the statement by the Magistrate at paragraph 116 that “Professor Jureidini’s … credentials for giving [his opinion] are self-evident and nothing that was put to him caused him to alter his view”.
Eliza contends that cross-examination established that Professor Jureidini had a conflict of interest and this should have caused the Magistrate to reject his evidence.
Professor Jureidini’s report was written on a composite letterhead of the University of Adelaide and Robinson Research Institute. However, underneath his signature appeared the words “Disciplines of Psychiatry & Paediatrics, University of Adelaide and Senior Consultant Psychiatrist, Women’s & Children’s Health Network”.
During cross-examination by Eliza, Professor Jureidini said that he had just noticed that the sign off was incorrect because he had resigned his position at the Women’s & Children’s Hospital with effect in August 2021 which was before he saw her. It was clear from page 2 of his report itself that that he had ceased to work at the Women’s and Children’s Hospital in 2021.
Eliza put to Professor Jureidini that he had a conflict of interest because she and Brandon had a litigation case for malpractice against the Hospital, and he signed off the report as a Women’s and Children’s Hospital employee. He reiterated that the sign off was incorrect.
When asked by the Magistrate whether he considered that he had a conflict of interest because he had been working at the Hospital when the events the subject of Brandon’s case occurred, Professor Jureidini said that he did not because he was not aware of the details of Brandon’s allegations and they did not, so far as he was aware, bear on any of the information provided to him sourced from the Hospital.
There is no suggestion, or reason to believe, that Professor Jureidini had any involvement in the treatment of Brandon the subject of his case. In the circumstances, there was no reason for the Magistrate to discount Professor Jureidini’s evidence merely because he had been an employee of the Hospital at the time of the events the subject of Brandon’s case.
Eliza refers to the statement by the Magistrate at paragraph 117 that “It is evident that the further testing arose from [Eliza’s] own descriptions that she was giving the doctors about [Matthew’s] significant symptoms and their family history when his clinical presentation did not otherwise raise any significant medical concern”.
Eliza contends that there was no evidence to support this finding.
However, the documentary evidence summarised in the Background section above clearly demonstrated both that Matthew’s clinical presentation did not raise serious medical concerns and it was the information provided (and anxiety expressed) by Eliza to the doctors that led to their decisions to undertake further testing.
Eliza refers to the statement by the Magistrate at paragraph 117 that “[Eliza] was presenting as very anxious about [Matthew’s] health”.
Eliza contends that there was no evidence to support this finding.
However, the documentary evidence summarised in the Background section above clearly demonstrated that Eliza expressed to the doctors strong anxiety and concern about Matthew’s health.
Eliza refers to the statement by the Magistrate at paragraph 117 that “It would not seem surprising in those circumstances that the doctors were industrious in their efforts to identify any underlying cause for his varied symptoms, or at least to allay her concerns by having testing the results of which they expected would rule out any medical problem”.
Eliza contends that there was no evidence to support this finding.
However, the documentary evidence summarised in the Background section above demonstrated that it was the combination of Eliza’s reports and anxiety expressed to the doctors that led to the doctors taking what would otherwise have been extraordinary lengths of steps based upon Matthew’s clinical presentation.
Eliza also refers to the fact that none of the doctors who examined or treated Matthew gave evidence at the trial.
However, for the reasons given above, the records of the doctors in question comprised business records admissible as evidence of the truth of their contents under section 53 of the Evidence Act. In addition, the Youth Court was not bound by the rules of evidence and was entitled to act on the records without the relevant doctor being called to give evidence.
Given the number of doctors involved, it was obviously impractical for the Chief Executive to call all of the doctors to give evidence. While the Magistrate may have benefited from evidence given by one doctor (a general practitioner or paediatrician), the fact that the doctors were not called to give evidence did not prevent the Magistrate from relying upon the documentary evidence.
Eliza also contends that the impugned statement by the Magistrate seems to be a medical opinion rather than a judicial conclusion. It is not a medical opinion. It is a finding of fact made partly by reference to the documentary records of the doctors and partly by inference from the records.
Eliza refers to the statement by the Magistrate at paragraph 118 that “there is no suggestion that any medical professional had conveyed to [Eliza] that [Matthew] could not go to school for medical or health-related reasons”.
Eliza contends that this is an erroneous finding because there was no evidence to support this finding.
The finding was expressed in negative terms such that, in a literal sense, it referred to an absence of evidence rather than to affirmative evidence. In any event, the documentary evidence summarised in the Background section above demonstrated affirmatively that the doctors were not telling Eliza that Matthew could not go to school for medical reasons (and were saying the opposite).
Eliza refers to the statement by the Magistrate at paragraph 118 that “To the contrary, it is evident from the information addressed above that [Eliza] was being encouraged to return him to school, and offered ways to assist with that. [Eliza] was resistant.”.
Eliza contends that this is an erroneous finding because there was no evidence to support this finding. The documentary evidence summarised in the Background section above clearly showed Eliza being advised and encouraged to return Matthew to school. It is clear that Eliza was resistant to this.
Eliza refers to the statement by the Magistrate at paragraph 119 that “Again, I accept the evidence of Dr’s Tee and Professor Jureidini’s opinions that [Matthew] has been harmed by these actions, particularly depriving him from attending school”.
Eliza contends that this is an erroneous finding because the Magistrate failed to articulate or set out what she accepted, what actual harm Matthew suffered or the reasons why.
This contention does not raise an erroneous finding ground: at most it would raise an inadequate reasons ground. However, the Magistrate’s reasons (including those reproduced at [181] above) clearly articulated the harm to Matthew in terms of his health and education, the opinions of Dr Tee and Professor Jureidini that she accepted and the reasons why.
Eliza also contends that the Magistrate did not identify how Matthew had been deprived from attending school when the Magistrate received evidence of home schooling and Eliza was making real efforts to have him formally removed from government schooling with the Minister’s approval.
Although Eliza gave evidence that she was home schooling Matthew, as observed above, she did not give evidence that she was following the school curriculum. Nor did she give evidence of any actual specific application that she lodged with the Education Department for exemption from attending school. It is clear from the legislation that any such application would have had to have been very detailed and encompass, amongst other things, the curriculum to be followed in home schooling.
Eliza refers to the statement by the Magistrate at paragraph 119 that “I accept the evidence of Dr’s Tee and Professor Jureidini’s opinions ... particularly … the impact of [Eliza’s] behaviour on [Matthew’s] wellbeing”.
Eliza contends that this is an erroneous finding because the Magistrate failed to articulate or set out what she accepted, what actual impact Matthew suffered or how it was suffered.
Again, this contention does not raise an erroneous finding ground: at most it would raise an inadequate reasons ground. However, again, the Magistrate’s reasons (including those reproduced at [181] above) clearly articulated the impact to Matthew in terms of his well-being, the opinions of Dr Tee and Professor Jureidini that she accepted and how Eliza’s conduct impacted on Matthew’s well-being.
Eliza refers to the statement by the Magistrate at paragraph 120 that “Professor Jureidini referred to [Matthew] being deprived of going to school as being one of his major areas of concern. I have referred to his evidence about that.”.
Eliza contends that this is an erroneous finding because nowhere in his evidence at trial did Professor Jureidini detail why he thought that.
However, this was covered explicitly in Professor Jureidini’s testimony. He gave evidence that, if and to the extent that Matthew was being home schooled, it was not officially sanctioned, and nobody was overseeing it. He gave evidence that there needs to be a sufficiently good reason for a child to miss out on the social interactions at school. His evidence was summarised by the Magistrate in the balance of paragraph 120.
Eliza also contends that Professor Jureidini did not have any contact with Matthew and so was not in a position to make any assessment of any harm or likelihood of harm to him.
However, Professor Jureidini had the benefit of meeting with Eliza and reading the extensive history of the dealings with doctors and educators. The mere fact that he did not see Matthew did not entail that he could not express opinions concerning harm or potential harm to him.
Eliza refers to the statement by the Magistrate at paragraph 120 that Professor Jureidini “maintained his view when [Eliza] told him she had been providing [Matthew] with home schooling. Professor Jureidini noted that [Eliza] did not have the necessary exemption to home school. He said that going to school was about more than academic achievements, including ‘the socialisation, learning to deal with other people’s needs as well as your own, dealing with frustrations in social situations, these are all critical learning experiences.”.

Eliza contends that this is an erroneous finding because the Magistrate failed to appreciate that, during the interview that Professor Jureidini had with her, he never broached or discussed these issues with her.
Professor Jureidini summarised his interview with Eliza over one and a half pages of his report. He said that he asked her about Matthew’s absence from school and said that she could give no adequate account of why he did not attend. He said that she claimed that she had been assaulted by the principal on 11 March 2020 and observed that this event did not appear in the documentation provided to him. The Magistrate in her reasons referred to Professor Jureidini’s account of the interview and was clearly aware of what he said was the discussion about schooling.
Eliza also contends that the Magistrate’s findings at paragraph 120 comprise erroneous findings because professional assessments cannot be undertaken in a one hour interview.
However, the Magistrate asked Professor Jureidini whether a one hour consultation with the subject was sufficient for the purpose and he said that it often was and in this case he stood by his judgment that it was sufficient for what he needed to do, given the other information that was available to him.
Eliza refers to the statement by the Magistrate at paragraphs 122 to 124 that “Section 18 of the Safety Act provides that a child of compulsory school age who has been persistently absent from school without satisfactory explanation for the absence will be taken to be at risk. I do not consider any of [Eliza’s] explanations for [Matthew] being absent for medical reasons to be ‘satisfactory’, in circumstances where I have found that the evidence establishes her reports of [Matthew’s] various conditions were not supported by medical opinion, there is no evidence of medical advice that [Matthew] could or should not attend school, and she did not provide supporting medical material as requested by the school. In my view, the evidence shows [Eliza’s] decision that [Matthew] would not return to school was likely driven by her view that they may not follow what she required in terms of management of [Matthew’s] conditions.”
Eliza contends that this is an erroneous finding because the Magistrate made a blanket assertion that section 18 of the Act applied without any specific evidence or information before the Court with respect to its application.
However, section 18(1)(e) (addressed at [212] above) applies of its own force. Matthew was to be taken to be at risk of harm if he was persistently absent from school without satisfactory explanation of the absence. The criteria for application of that provision were clearly proved by the documentary evidence summarised in the Background section above. The Magistrate had addressed that evidence in some detail at paragraphs 58 to 76.
Eliza refers to the statement by the Magistrate at paragraph 125 that “Dr Tee reviewed the various rationales [Eliza] gave for [Matthew] not attending school and her lack of confidence in their ability to manage her concerns about [Matthew’s] low blood sugar levels. Dr Tee said that ‘there was no documentation to support these concerns and complete withdrawal from school was an extreme response to the mother’s concerns’”.
Eliza contends that this is an erroneous finding because there was no evidence that Dr Tee was asked to review the various rationales referred to by the Magistrate.
Dr Tee did in fact review the rationales at page 16 of her July 2021 report. Although she was not asked specifically to address the rationales advanced by Eliza, this was part of her response to the request of her to provide a forensic medical report regarding concerns of maltreatment of him by his mother. Matthew’s removal from school was one of the primary concerns.
Eliza also contends that this is an erroneous finding because Dr Tee never met her.
However, Eliza’s rationales given to teachers and educators for Matthew not attending school were identified in the documentary evidence from the doctors and educators summarised in the Background section above. It was not essential for Dr Tee to have met Eliza to identify the rationales she advanced to teachers and educators for Matthew not attending school.
Eliza also contends that the Magistrate failed to consider Part 7, Division I Subdivision 1 or Division 2 Subdivision 1 of the Education Act. She does not identify what specific provisions in those subdivisions the Magistrate failed to consider.
The principal provisions in those subdivisions are sections 60 and 68 (which are reproduced at [208] above) which make it mandatory for children of school age to be enrolled in and attend at a school. Although the Magistrate did not refer explicitly to those provisions, they underlie section 18(1)(e) of the Act, to which the Magistrate explicitly referred and the Magistrate referred implicitly to these provisions at paragraph 126 addressed below.
Eliza refers to the statement by the Magistrate at paragraph 126 that “Otherwise, [Eliza’s] claim at the trial that it is her ‘parental right’ to home school her child and that she did not have to present him to school is plainly incorrect”.
Eliza contends that this is an erroneous finding because no evidence was adduced to defeat the operation of regulation 22 of the Education Regulations.
Eliza does not identify what she contends were unavoidable circumstances or sufficient cause for Matthew’s non-attendance at school on each day between March 2020 and June 2021 when he was absent from school. At least an evidentiary onus lay on Eliza to prove such circumstances and causes and she failed to discharge such onus. On the contrary, at trial Eliza’s evidence was that it was a lifestyle choice to home school Matthew. Further, the documentary evidence from the doctors and the educators summarised in the Background section above affirmatively established that Eliza’s removal of Matthew from school was not objectively justified.
Eliza contends that there was no evidence to support the finding made by the Magistrate at paragraph 126. However, it was clear on the evidence that the Minister had not granted an exemption pursuant to section 133 of the Education Act and that regulation 22 of the Education Regulations did not apply. It follows as a matter of law that the Magistrate was justified in making the statement at paragraph 126.
Eliza refers to the statement by the Magistrate at paragraphs 127 to 129 that “In relation to the impact of [Eliza’s] behaviour on [Matthew], Dr Tee said, ‘psychological harm may occur when abnormal parental healthcare seeking or illness behaviour interferes with daily life and distorts a child’s view of their own health. There is evidence that [Matthew] does perceive he is unwell, including [Eliza’s] advice to Dr Ranasinghe in about March 2020 that [Matthew] was worried about becoming unwell, raising concerns for his mental stability. A report from Ms Jolly also includes that [Matthew] recounted a ‘secret belief’ that he was living a mirror image life to that of his brother, and his fear was he will eventually lose his memory like [Brandon]. Ms Jolly reported that [Matthew’s] belief is entrenched and will require therapeutic assistance to ameliorate his worry.”
Eliza contends that this is an erroneous finding because no evidence was adduced to defeat the operation of regulation 22 of the Education Regulations. I have addressed this above.
Eliza contends that there was no evidence to support the findings made by the Magistrate at paragraphs 127 to 129.
However, the Magistrate correctly summarised the evidence of Dr Tee and Ms Jolly and the documentary evidence from Dr Ranasinghe to which she referred in those paragraphs and it was open to her to accept that evidence.
Eliza refers to the statement by the Magistrate at paragraph 130 that “In Dr Tee’s opinion [Eliza’s] action have clearly resulted in restriction of [Matthew’s] participation in normal activities, exclusion from his peers and prolonged interruption of education”.
Eliza contends that this is an erroneous finding because there was no evidence of Dr Tee’s professional qualifications with respect to educational expertise to express such opinions.
Eliza did not challenge Dr Tee’s expertise at trial in respect of educational matters. In any event, Dr Tee has been the Staff Specialist Paediatrician in Child Protection Services at the Women’s and Children’s Hospital since 2010 and worked in paediatrics and child protection services since 1998. She has authored over 1,000 forensic medical assessments of children with suspected assault, neglect or maltreatment. Education is obviously an important aspect of child protection and forensic paediatrics.
Eliza also contends that she holds authority under federal jurisdiction orders with respect to Matthew’s education requirements.
This is an implicit reference to the orders made by the Federal Circuit Court in 2015 in the matrimonial proceeding in which it was ordered that, as between Zane and Eliza, Matthew live with Eliza. That order only operated, and operates, as between Matthew’s parents. It does not override state legislation requiring Matthew to attend school.
Eliza refers to the statement by the Magistrate at paragraph 131 that “In circumstances where [Eliza] maintains that [Matthew’s] medical status has not been adequately investigated despite the medical opinions that further investigation is not warranted and that he is well, and her views about home schooling, including that it is a lifestyle choice, I am satisfied that there is a risk of further harm should he be returned to her care”.
Eliza contends that this is an erroneous finding because there was no evidence that she took any steps to minimise or restrict Matthew’s education notwithstanding that he was not sufficiently well to attend at government schools.
This submission is a reversion to the position adopted by Eliza prior to the Youth Court trial that Matthew was not sufficiently well to attend school, in contrast with the position she adopted at trial that it was a lifestyle choice. For the reasons given above, the evidence established that Matthew was sufficiently well to attend school. Otherwise, this is effectively a repetition of the submission made by Eliza in respect of paragraph 118, which I have addressed above.
Eliza also contends that the Magistrate failed to consider M v M,[30] U v U,[31] Green & Knowles[32] or Corey & Jebbett (No 2).[33]
[30] (1988) 166 CLR 69.
[31] [2002] HCA 36, (2002) 211 CLR 238.
[32] [2009] FamCA 271.
[33] [2019] FamCA 358.
These cases were not cited by Eliza to the Magistrate at trial. These cases were all family law cases and related to the rights and responsibilities in respect of the child as between mother and father. Eliza does not identify the relevant principle established by each case, how it applied in the case before the Magistrate or how the Magistrate failed to apply it in paragraph 131 of her reasons for judgment.
Eliza refers to the statement by the Magistrate at paragraph 132 that “I consider that [Eliza’s] position on these matters at the trial, which I have discussed, is consistent with Professor Jureidini’s opinion that she remains unable to acknowledge any concerns about her parenting of [Matthew] and would likely not engage with meaningful therapy”.
Eliza contends that this is an erroneous finding because there was no evidence that she remained unable to acknowledge any concerns about her parenting of Matthew or that she would likely not engage with meaningful therapy.
Eliza’s position at trial was that her conduct in respect of Matthew’s health and education was appropriate and beyond reproach. Indeed, her position on appeal is consistent with her approach at trial. Eliza’s dealings with teachers and doctors summarised in the Background section above frequently demonstrated the same position to the extent of her becoming angry with doctors or educators who expressed a contrary view to her own as to Matthew’s health and education. The Magistrate was entitled to accept Professor Jureidini’s opinion that she was unable to acknowledge any concerns about her parenting of Matthew.
Given that Eliza did not acknowledge the concerns about her parenting of Matthew in respect of his health and education expressed by the doctors and educators with whom she dealt in her interview with Professor Jureidini or at trial, it followed that it was inherently unlikely that she would engage with meaningful therapy. The Magistrate was entitled to accept Professor Jureidini’s opinion that she would likely not engage with meaningful therapy.
Eliza also cites the proposition in relation to the proof of serious allegations in civil cases articulated by Dixon J in Briginshaw v Briginshaw.[34] Eliza does not articulate why that principle applied in the present case to findings about her parenting of Matthew or likely engagement with meaningful therapy. Manifestly, that principle did not apply to findings on those topics.
[34] (1938) 60 CLR 336 at 362.
Eliza refers to the statement by the Magistrate at paragraph 133 that “Whilst Dr Amanda Shea Hart, a Child and Family Consultant and Therapist who prepared a parenting capacity assessment and with whom [Eliza] participates in therapeutic sessions, told the Court that [Eliza] had made progress in their sessions, in my view it is evident that any insight is limited.”.
Eliza contends that this is an erroneous finding because the Magistrate failed to set out the Evaluation of the therapeutic sessions undertaken with Dr Shea Hart.
This contention does not raise an erroneous finding ground: at most it would raise an inadequate reasons ground. However, it was not necessary for the purposes of paragraph 133 for the Magistrate to set out further details of Dr Shea Hart’s evaluation.
Eliza also repeats her contention made in respect of paragraph 132 that there was no evidence that she remained unable to acknowledge any concerns about her parenting of Matthew or that she would likely not engage with meaningful therapy, which I have addressed above.
Eliza refers to the statement by the Magistrate at paragraph 134 that “Dr Shea Hart said [Eliza] ‘had developed insight into the adverse effects on [Matthew] by being angry for standing up for his needs.’ Dr Shea Hart said in answer to a question by [Eliza], ‘[y]ou were hurt by other professionals not understanding [Matthew’s] needs and you may have raised your voice a bit in front of [Matthew] to stand up for his rights but you’ve made progress in remaining calm but clear in front of [Matthew].’”.
Eliza contends that the Magistrate failed to set out the values attributed to Dr Shea Hart clarifying that Eliza had developed insight into the adverse effects on Matthew by being angry for standing up for his needs.
This contention does not raise an erroneous finding ground: at most it would raise an inadequate reasons ground. However, this was a direct quote from Dr Shea Hart’s evidence recorded at page 968 of the transcript.
Eliza contends that the there was no evidence that she was hurt by other professionals not understanding Matthew’s needs. However, again this was a direct quote from Dr Shea Hart’s evidence recorded at page 968 of the transcript.
Both of these passages were in evidence in chief from Dr Shea Hart, who was called by Eliza to give evidence. Eliza did not seek to contradict Dr Shea Hart’s evidence in this respect. In any event, if Eliza succeeded on these contentions, it would not advance her case.
Eliza also contends that there was no evidence that she had harmed Matthew by raising her voice on an occasion when she was unhappy or frustrated or that Matthew was in fact harmed at all.
However, leaving aside evidence to that effect contained in the documentary evidence summarised in the Background section above, evidence to that effect was given by Dr Shea Hart herself in giving an account of her discussions with Eliza.
Eliza refers to the statement by the Magistrate at paragraphs 135 and 136 that “In relation to [Matthew] going to school, Dr Shea Hart told the Court that [Matthew] said he wants to go to school. She said [Eliza] told her that she would take [Matthew] to a suitable school if he was in her care. When she was asked about what she understood [Eliza] meant by a ‘suitable school’, she said it depended on the standard of the learning and ‘the undertaking of his needs’. That indicates to me that [Eliza’s] view most likely continues to be that she may choose not to send [Matthew] to school if it does meet with her requirements, and that there is no legal requirement that she do so. She said that although she knew there was legislation that made it compulsory for children of school age to attend school, ‘compulsory doesn’t necessarily mean that its legal.’”.
Eliza contends that the Magistrate failed to set out the values attributed to Dr Shea Hart clarifying that Matthew said that he wants to go to school or that Eliza said that what was a suitable school depended on the standard of the learning and the undertaking of Matthew’s needs.
This contention does not raise an erroneous finding ground: at most it would raise an inadequate reasons ground. However, Dr Shea Hart herself gave evidence that Matthew “wanted to go to school” at page 984 of the transcript and had recorded that in her notes. Dr Shea Hart also gave evidence, when asked what Eliza said was a suitable school, that “it would depend on the learning and the undertaking of his needs” at page 1026 of the transcript.
Eliza also contends that the Magistrate failed to indicate why Eliza’s exercising her rights to assess which or what type of school her child attended was wrong.
This contention does not raise an erroneous finding ground: at most it would raise an inadequate reasons ground. However, the child protection concern was not as to which specific school Matthew attended but that he was not attending any school in contravention of the Education Act and, on the expert evidence, to his detriment.
Eliza also contends that the Magistrate failed to consider Eliza’s rights and obligations under federal legislation pursuant to the Federal Circuit Court order. I have already addressed this contention at [536] above.
Eliza refers to the statement by the Magistrate at paragraph 137 that “In summary, the evidence demonstrates [Matthew] has suffered harm and is likely to suffer harm if he is in [Eliza’s] care”.
Eliza contends that the Magistrate failed to properly inform herself as to the facts, which in turn resulted in the Magistrate misinforming or misdirecting herself as to the applicable law or legal position to apply in the matter.
This contention is derivative of the contentions made in respect of the preceding paragraphs 106 to 136 of the Magistrate’s reasons for judgment. As those contentions are not made out, so the contention in respect of paragraph 137 it is not made out.
By way of overview of the Magistrate’s findings and reasons as a whole, it was open to the Magistrate to find that Matthew had suffered harm in Eliza’s care in respect of both his health and education. It was also open to the Magistrate to find that, if he remained in Eliza’s care, he would likely continue to suffer the same type of harm. It was open to the Magistrate to conclude that it was in the best interests of Matthew, and justified and appropriate, to make a guardianship order.
This ground of appeal is not established.
Conclusion
None of the grounds of appeal have been established. The appeal must be dismissed.
I will hear the parities as to the final orders to be made.