CNM v Chief Executive, Department for Child Protection

[2025] SASCA 9

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

CNM v CHIEF EXECUTIVE, DEPARTMENT FOR CHILD PROTECTION

[2025] SASCA 9

Judgment of the Court of Appeal  

(The Honourable Justice S Doyle and the Honourable Justice Bleby)

7 February 2025

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - GENERALLY

ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS

In April 2024, the applicant sought judicial review of an adverse finding concerning him in a letter written by the respondent about the risk of harm to the applicant’s children due to domestic violence. The respondent had advised the applicant that a risk of harm had been identified on the basis that the ability of the children’s mother ‘to make safe choices for the children was impaired’ by the applicant’s ‘use of violence and coercive control’.

The respondent sought, and a judge of this Court granted, summary judgment of the claim for judicial review on the basis that the finding complained of had no legal effect on the applicant, and there had been no consequential action affecting his rights or those of his children.

The applicant seeks to appeal on grounds that the primary judge proceeded on an erroneous understanding of the facts, failed to take into account (or gave inadequate weight to) relevant considerations, and acted upon a wrong principle; and that the decision below was clearly wrong.

Held, per the Court, dismissing the application for leave to appeal:

1.The weight of authority favours the view that a decision to grant summary judgment against an applicant on the basis that the applicant’s claim does not have any reasonable basis is interlocutory and hence requires leave to appeal; and

2.In circumstances where the applicant has not identified any reasonably arguable basis for challenging the primary judge’s decision, the proposed appeal does not raise any issue of general principle, and relates to a matter of limited practical, legal, or indeed reputational, significance for the applicant, the interests of justice do not favour a grant of leave to appeal.

Children and Young People (Safety) Act 2017 (SA) ss 7, 23, 31, 31(1), 32, 32(1), 32(2), 32(3), 32(3)(a), 34, 34(3), 35, 36, 51 150, 152; Children and Young People (Safety) Regulations 2017 (SA) r 11; Uniform Civil Rules 2020 (SA) rr 144.2, 256.5(3)(a), referred to.
Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Attorney-General (SA) v Kowalski [2015] SASC 123; City of Port Adelaide Enfield v Bingham (2014) 119 SASR 1; CNM v Chief Executive, Department for Child Protection [2024] SASC 118; Commissioner of Taxation v Bosanac (No 5) [2019] FCA 2126; Gheorghiu v Perpetual Trustees Victoria Ltd [2007] VSCA 83; Jennings v Police (SA) (2019) 133 SASR 520; Kaldas v Barbour (2017) 107 NSWLR 341; King Investment Solutions Pty Ltd v Hussain (2005) 64 NSWLR 441; King v Ombudsman (2020) 137 SASR 18; L v South Australia (2017) 129 SASR 180; Manderson M & F Consulting v Incitec Pivot Ltd (2011) 35 VR 98; McDonald v The State of South Australia [2022] SASCA 81; Re Luck (2003) 78 ALJR 177; TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93, considered.

CNM v CHIEF EXECUTIVE, DEPARTMENT FOR CHILD PROTECTION
[2025] SASCA 9

Court of Appeal – Civil:  S Doyle and Bleby JJA

1. THE COURT:     The applicant sought judicial review of an adverse finding concerning him in a letter written by the respondent about the risk of harm to his children.  The respondent sought, and a judge of this Court granted,[1] summary judgment of the claim for judicial review on the basis that the finding complained of had no legal effect on the applicant, and there had been no consequential action affecting his rights or those of his children.

   [1]     CNM v Chief Executive, Department for Child Protection [2024] SASC 118 (‘Reasons’).

2. The applicant now seeks leave to appeal.  For the reasons that follow we are not persuaded that there is sufficient merit in the application to grant leave to appeal.

   Background

3. On 23 June 2023, the Department for Child Protection received a notification pursuant to s 31 of the Children and Young People (Safety) Act 2017 (SA) (‘the CYPS Act’) to the effect that a child of the applicant had exhibited suspicious indicators consistent with sexual harm and may be at risk. The respondent caused an assessment of the notification to be undertaken.

4. Upon completion of the assessment, an investigation into the circumstances of the child and his brother (‘the children’) was undertaken in accordance with ss 32(3)(a) and 34 of the CYPS Act. During the course of the investigation, the Department identified a risk of domestic violence. As a result, on 24 October 2023, the applicant was interviewed by Department employees. In the course of the interview, the applicant was asked about historical issues relating to domestic violence.

5. By letter dated 1 November 2023, the respondent advised the applicant that a risk of domestic violence had been identified on the basis that the ability of the children’s mother ‘to make safe choices for the children was impaired’ by the applicant’s ‘use of violence and coercive control’ (‘the adverse finding’).  The children’s mother was also notified of the adverse finding. 

6. However, following a risk assessment in accordance with the Department’s risk assessment framework, a determination was made that the children were considered to be safe and at low risk in the mother’s home.  The children were referred to a therapy service, the file was closed and no further action was taken by the Department.

7. The applicant sought judicial review of the adverse finding made by the respondent.  The grounds relied upon involved complaints of a failure to accord procedural fairness and legal unreasonableness.  In particular, the applicant complained that (i) the respondent failed to provide prior notice of the adverse finding, a summary of the information it was based upon, or an opportunity to comment or respond; (ii) the respondent’s reasons for making the adverse finding were unreasonable; and (iii) there was no evidence to support the finding.  The applicant sought an order setting aside the adverse finding.

   Legislative framework    

8. It is appropriate to provide a brief overview of the legislative framework within which the respondent made the adverse finding in relation to the applicant.

9. Under s 7 of the CYPS Act, the paramount consideration in the administration, operation and enforcement of the Act is to ensure that children and young people are protected from harm. To that end, Part 1 of Chapter 5 imposes mandatory reporting obligations upon persons employed or otherwise working in a number of prescribed occupations. Under s 31(1), if such persons, in the course of their employment, form a suspicion on reasonable grounds that a child or young person is, or may be, at risk, then they must report that suspicion as soon as is reasonably practicable.

10. Part 2 of Chapter 5 governs the response to such reports. Under s 32(1), the Chief Executive must cause each report to be assessed in accordance with any requirements set out in the regulations. Regulation 11 of the Children and Young People (Safety) Regulations 2017 (SA) (‘the CYPS Regulations’) requires reports to be assessed in accordance with any requirement or direction of the Chief Executive. Under s 32(2), the Chief Executive may, in the course of an assessment, use such systems of information gathering, collating or reporting as he or she thinks fit. Importantly, the CYPS Act does not provide any further detail as to how an assessment of a report is to be undertaken.

11. For the purposes of initially assessing whether a child is exposed to harm or a risk of harm, the Department has policy-based categories of harm, each of which is defined and determined by a series of identified factors. A child’s circumstances are assessed against these categories of harm, by reference to what are referred to as screening criteria. All reports under s 31 are considered against these screening criteria.

12. Section 32(3) of the CYPS Act provides that, upon the completion of an assessment under s 32, the Chief Executive must cause at least one of the actions set out in s 32(3) to be taken. Relevantly for the purposes of this matter, one of those actions is carrying out an investigation into the circumstances of the child under s 34 of the CYPS Act.

13. Section 34 provides a broad discretion to the Chief Executive to cause an investigation into the circumstances of a child or young person if a report is made pursuant to s 31 and the Chief Executive suspects on reasonable grounds that that child or young person may be at risk. Whilst s 34(3) provides that the regulations may include further provision in relation to such investigations, the CYPS Regulations are silent in this respect.

14. The Department has a Manual of Practice intended ‘to support and guide DCP staff to undertake child protection practice’.  The Manual provides detailed guidance about how a Department employee can plan and conduct an investigation into the circumstances of a child experiencing harm or suspected to be at risk of harm.  For example, it contemplates convening strategy discussions with individuals from other agencies, as well as engaging with the child the subject of the notification.  It also expressly encourages Department employees to ‘apply professional judgment to each individual child protection case in its specific context’.

15. An investigation will, among other matters, look to determine whether any harm, or risk of harm, identified in the initial assessment has some basis. In the course of an investigation, information may be gathered about a child’s circumstances from a wide range of sources. Usually that information is gathered voluntarily without any powers being exercised. However, there are some powers the Chief Executive may exercise as part of an investigation. In particular, under s 35, the Chief Executive may, in the circumstances provided, direct that the child or young person be professionally examined or assessed. And under s 36, the Chief Executive may, if he or she reasonably suspects the child or young person is at risk as a result of the abuse of a drug or alcohol, direct the parent, guardian or other person to undertake an approved drug and alcohol assessment.

16. Whilst these powers are contained in Part 2 of Chapter 5 of the CYPS Act, there are also other powers under that Act which enable the Department to obtain information. For example, s 150 enables a child protection officer to require, by notice in writing, that a specified person or body provide information or documents; and s 152 permits the sharing of information and documents between certain persons and bodies, including the Department, where the provider reasonably believes that doing so would assist the recipient in performing functions relating to children, or managing any risk to a child which might arise in the recipient’s capacity as an employer or provider of services.

17. Towards the end of an investigation, a finding is then made as to whether a category of harm is substantiated or not substantiated and, in the case of a risk of harm, whether that risk has been identified or not identified. Importantly, the process through which any finding of substantiation of harm, or identification of risk, is made is not prescribed by the CYPS Act. Nor is any such finding required by the Act. It is no more than an opinion that, on the information that has been gathered during the course of the investigation, one of the defined categories of harm or risk has been substantiated or identified.

18. At the conclusion of an investigation, Department case workers assess the risk to the safety of the child according to the relevant policy and procedures manual, and a risk level is assigned to the household in which the child will live.

19. Following an investigation and assessment of the risk to a child, the Department case workers must determine what, if any, further action may be taken.  Broadly speaking, this involves determining whether or not further intervention by the Department should occur.  In either case, the Department may also determine that referrals should be made to other support services and agencies.

20. Further intervention might involve the exercise of statutory powers under the CYPS Act, such as convening a family group conference,[2] the removal of a child from a place,[3] or an application for court orders for the care and protection of a child.[4] Each of these statutory interventions may only occur in accordance with specified statutory criteria. The CYPS Act also provides rights to parents of the child, either to participate in a family conference[5] or as a party to proceedings.[6]

    [2] CYPS Act, Chapter 4, Part 2.

    [3] CYPS Act, Chapter 5, Part 3.

    [4] CYPS Act, Chapter 6, Part 1.

    [5] CYPS Act, s 23.

    [6] CYPS Act, s 51.

    Primary judge’s reasons

21. There is no dispute as to the principles governing determination of the respondent’s application for summary judgment.  As the primary judge observed,[7] the Court is empowered to grant summary judgment in the respondent’s favour, and dismiss the applicant’s claim, if satisfied that there is no reasonable basis for the judicial review as sought.[8] In determining an application for summary judgment, the Court is required to engage in a practical assessment of whether the applicant has real, as opposed to fanciful, prospects of success.  Mere satisfaction that the claim is unlikely to succeed is not sufficient to grant summary judgment; however, it is not necessary to establish that the claim is hopeless or ‘bound to fail’.

    [7] Reasons at [6].

    [8]     Uniform Civil Rules 2020 (SA), rr 144.2 and 256.5(3)(a); Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117 at [53]-[60] (Doyle J).

22. The primary judge explained that the respondent’s principal contention at first instance was that the adverse finding (as to an identification of risk) was not a decision made in the exercise of a statutory power and, as such, was not amenable to judicial review.  In addition, or alternatively, it was not amenable to judicial review because it had no direct or consequential legal effect upon the applicant or his rights.

23. In accepting the respondent’s principal contention, the primary judge summarised the legislative context in which the adverse finding was made.[9] He explained that the Department had received a report pursuant to s 31 of the CYPS Act of a suspicion, said to be based on reasonable grounds, that a child of the applicant may be at risk. Once the notification was received, the Chief Executive was obliged to, and did, cause the report to be assessed (s 32(1)). Upon completion of the assessment, the Chief Executive, whilst not obliged to, exercised the discretion available under s 32(3)(a) to cause an investigation into the circumstances of the child to be carried out under s 34. The investigation was carried out, and included an interview of the applicant by Department employees. The finding or identification of a risk was made, and notified to both the applicant and the child’s mother. However, following a further risk assessment, the Department file concerning the child and his brother was closed, and no further action under the CYPS Act was undertaken.

    [9] Reasons at [8].

24. The primary judge accepted that the CYPS Act was largely silent as to the process to be engaged in when undertaking a s 34 investigation; and that the discretion to engage in such an investigation was unfettered by any statutory requirement other than that, in a case involving a reported suspicion, an assessment must first occur. Further, whilst s 34(3) provided that regulations may make further provision in relation to a s 34 investigation, no such regulations had been promulgated.[10] Instead, the Department had a manual which provided substantial guidance to relevant employees as to how to conduct an investigation, as explained above. Whilst noting that the CYPS Act provided for the exercise of certain coercive powers, for example under ss 150 and 152, the judge proceeded on the basis that no coercive powers had been deployed in the present case; that, as usually occurred, information had been sought and provided on a voluntary basis without the exercise of any coercive powers.[11]

    [10] Reasons at [9].

    [11] Reasons at [10].

25. The primary judge expressed agreement with the respondent’s submission that the investigation that had occurred was of the same nature as the well-established general power of the executive government to conduct non-statutory non-coercive enquiries.[12]  His Honour referred in this respect to the decisions of this Court in both King v Ombudsman[13] and L v State of South Australia[14] as to the relevance of this context in determining the amenability to judicial review of findings or reports flowing from such enquiries.

    [12] Reasons at [11].

    [13]   King v Ombudsman (2020) 137 SASR 18 at [91]-[96] (Doyle J, Parker J and Tilmouth AJ agreeing).

    [14]   L v South Australia (2017) 129 SASR 180 at [102]-[104] (Kourakis CJ, Parker and Doyle JJ agreeing).

26. Relying upon these authorities, the primary judge concluded that the finding or identification of risk had no legal consequence.  It was not a decision made in the exercise of statutory power and was not amenable to judicial review.[15]  The applicant had sought an order that the finding be set aside, being an order in the nature of certiorari.  His Honour reasoned that such relief will ordinarily not be granted unless the challenged decision has a legal impact on the applicant.  It is not usually enough that a public official forms an opinion or makes a recommendation, even if this may form the basis for a discretionary step to be taken by another decision-maker.  The opinion or recommendation will not generally be reviewable unless the public official was under some obligation in forming the opinion or making the recommendation and/or was obligated to take some specified legal step once the opinion was formed or the recommendation made. Certiorari will not generally be available in the absence of these circumstances, and indeed would have no utility or work to do because the impugned ‘decision’ is of no consequence whether quashed or not.[16]

    [15] Reasons at [13].

    [16] Reasons at [14].

27. The primary judge concluded:[17]

    The conclusion complained of has had no legal effect on the applicant and there has been no consequential action affecting his rights or those of his children.  The fact that the outcome letter may have come to the attention of the applicant’s wife or other jurisdictions such as the Administrative Appeals Tribunal or a court exercising family law jurisdiction does not alter the fact that no such consequential action has been effected.  Should the conclusion ever be relied on elsewhere, its terms and the reliability of its evidentiary basis can be challenged in that context.  Further, the relief being sought is discretionary in nature; any order setting aside the finding or granting declaratory relief would serve no practical purpose.

    [17] Reasons at [15].

28. His Honour was satisfied that the application for judicial review should be summarily dismissed as there was no reasonable basis for the claim; the applicant’s claim had no prospect of success.[18]

    [18] Reasons at [16].

    Proposed appeal

1. The applicant seeks to appeal on grounds that the primary judge proceeded on an erroneous understanding of the facts, failed to take into account (or gave inadequate weight to) relevant considerations, and acted upon a wrong principle; and that the decision below was clearly wrong.

2. The applicant seeks leave to appeal, to the extent that is necessary.  Whilst there is some authority to the effect that a decision to grant summary judgment in favour of an applicant is final and so may found an appeal as of right,[19] the weight of authority favours the view that a decision to grant summary judgment against an applicant on the basis that the applicant’s claim does not have any reasonable basis is interlocutory and hence requires leave to appeal.[20]  It is appropriate to proceed on the basis that the applicant requires leave to appeal.

   [19]   TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93 at [7]-[8] (Basten JA, Meagher JA and Emmett AJA agreeing); King Investment Solutions Pty Ltd v Hussain (2005) 64 NSWLR 441 at [25]-[26] (Campbell J); Gheorghiu v Perpetual Trustees Victoria Ltd [2007] VSCA 83 at [18] (Ashley JA, Neave JA agreeing); Commissioner of Taxation v Bosanac (No 5) [2019] FCA 2126 at [39]-[40] (McKerracher J).

   [20]   See Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117 at [80]-[88], and the cases referred to therein, including Attorney-General (SA) v Kowalski [2015] SASC 123 at [136] (Blue J); McDonald v The State of South Australia [2022] SASCA 81 at [17]-[18] (Livesey P, Doyle and Bleby JJA), applying Re Luck (2003) 78 ALJR 177 at [9] (McHugh ACJ, Gummow and Heydon JJ); see also Manderson M & F Consulting v Incitec Pivot Ltd (2011) 35 VR 98 at [11] (Redlich JA and Rudd AJA); cf Jennings v Police (SA) (2019) 133 SASR 520 at [16]-[48] (Kourakis CJ, Stanley and Parker JJ) (suggesting that the decision may be final, and leave to appeal may not be required, where the summary judgment was granted on a suitably clear factual basis and after full argument).

3. The principles governing leave to appeal are well settled, and need not be repeated.  In the present case, the respondent opposes a grant of leave to appeal on the basis that there is no arguable merit in the appeal.  It is thus appropriate, and necessary, to consider the merits of the proposed appeal.

   Lack of merit in the proposed appeal

4. In considering the amenability to judicial review of an opinion, recommendation or finding made by a public official, it is necessary to consider the statutory context in which the relevant ‘decision’ was made and its legal impact.  As explained in King v Ombudsman,[21] and the cases summarised therein, judicial review is less likely to be available where the relevant investigation or decision was not statutorily required or constrained to any significant extent.[22]  Further, and in any event, judicial review (particularly where the relief sought is in the nature of certiorari) will not generally be available where the opinion, recommendation or finding sought to be challenged does not have any legal impact upon the rights of the applicant, or otherwise form a precondition to (or a step in the process leading to) a decision which may impact such rights.[23]

   [21]   King v Ombudsman (2020) 137 SASR 18.

   [22]   King v Ombudsman (2020) 137 SASR 18 at [92]-[96] (Doyle J, Parker J and Tilmouth AJ agreeing).

   [23]   King v Ombudsman (2020) 137 SASR 18 at [106]-[139] (Doyle J, Parker J and Tilmouth AJ agreeing).

5. In the present case, the primary judge’s summary of the statutory context and legal impact of the impugned finding was accurate.  Whilst the adverse finding concerning the applicant was one made in the context of a statutorily contemplated process, it was not a finding made in the course of any investigation which was statutorily circumscribed in any significant way.  Further, and in any event, it was not a finding which had any legal impact upon the rights of the applicant, or otherwise formed a precondition to (or a step in a process leading to) a decision which would affect his rights.  The mere possibility of practical consequences in other contexts is not enough to make the finding one that was amenable to judicial review.

6. It is to be accepted, as outlined earlier, that the Department had some coercive powers available to assist it in conducting the investigation which led to the impugned finding. Although most of those powers were not utilised, the Department did utilise s 150 of the CYPS Act to access some documents from a third party. It is also apparent that the primary judge mistakenly overlooked the exercise of this power. However, the existence (and limited exercise) of these coercive powers did not alter the basic characterisation of the investigation and the finding made. It does not provide a basis for impugning the primary judge’s conclusion as to the amenability of the Department’s finding to judicial review.

7. The applicant seeks to rely upon the fact that the finding was published to his former wife, being the mother of the children concerned.  As recognised by the High Court in Ainsworth v Criminal Justice Commission,[24] potential prejudice to a person’s reputational interests may in some cases suffice to sustain an entitlement to procedural fairness, and declaratory relief in vindication of that entitlement.  However, this will not always be so.  As Kourakis CJ explained in L v South Australia,[25] it will be necessary to consider the circumstances, and in particular the likely extent, of that reputational harm.  The limited publication of an essentially internal finding or report is less likely to support amenability to review than a finding or report which is made public (particularly where that is an intended consequence of the relevant finding or report, or the statutory context in which it was made).  Here, the disclosure was to a person involved in the investigation and to whom the relevant facts and risk were well known.  To the extent that this had the capacity to give rise to any reputational harm at all, it does not provide a circumstance that would support an amenability to review.

   [24]   Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; as applied in King v Ombudsman (2020) 137 SASR 18 at [148] (Doyle J, Parker J and Tilmouth AJ agreeing); see also City of Port Adelaide Enfield v Bingham (2014) 119 SASR 1 (Stanley J) and Kaldas v Barbour (2017) 107 NSWLR 341 at [259] (Basten JA).

   [25]   L v South Australia (2017) 129 SASR 180 at [162], [176] (Kourakis CJ, Parker and Doyle JJ agreeing); as discussed in King v Ombudsman (2020) 137 SASR 18 at [151] (Doyle J, Parker J and Tilmouth AJ agreeing).

8. The applicant also seeks to challenge the primary judge’s references to the lack of utility in the applicant’s judicial review proceedings.  Properly understood, we do not think the judge intended much more than to emphasise the lack of any direct legal consequence for the applicant or his rights arising from the impugned adverse finding concerning him.  However, to the extent that the judge intended to rely upon it as an additional basis for granting summary judgment, on the ground that the Court had a discretion to refuse relief where it would lack any practical utility, this was a legitimate matter for the judge to take into account.  Further, even if this aspect of the proposed challenge to his Honour’s reasoning had some merit, it would not provide a basis for challenging the more fundamental basis upon which his Honour granted summary judgment in favour of the respondent.

9. We have had regard to the balance of the submissions made by the applicant in support of his proposed appeal.  It is sufficient to observe that we do not think they provide any reasonably arguable basis for impugning the primary judge’s reasoning or conclusion.

   Conclusion

10. For the reasons set out, the applicant has not identified any reasonably arguable basis for challenging the primary judge’s decision.  In circumstances where the proposed appeal does not raise any issue of general principle, and relates to a matter of limited practical or legal, or indeed reputational, significance for the applicant, the interests of justice do not favour a grant of leave to appeal.

11. The application for leave to appeal should be dismissed.