DT v Chief Executive of the Department for Child Protection

[2021] SASCA 64

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

DT v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION

[2021] SASCA 64

Judgment of the Court of Appeal  (ex tempore)

(The Honourable Justice Doyle and the Honourable Justice Livesey)

16 June 2021

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - PROCEEDINGS RELATING TO CARE AND PROTECTION

The applicant is the father of a four-year child.

Following a long trial, the Youth Court placed the child under the guardianship of the Chief Executive for Child Protection pursuant to s 53(1)(g) of the Children and Young People (Safety) Act 2017 (SA) (the Act).

The applicant seeks leave to appeal to the Court of Appeal concerning the refusal by a Judge of the Supreme Court to make a declaration as to whom the child “belongs”. The applicant seeks leave to appeal against the refusal to remove the legal practitioner appointed to represent the child. By an application dated 10 June 2021, he also seeks to be substituted as the child’s representative.

Held, dismissing the applications:

1.An extension of time and leave to appeal should be refused concerning the refusal to make a declaration as to whom the child "belongs". The grounds of appeal are not reasonably arguable. A child is not property. A person cannot “own” another person.

2.Leave to appeal is refused because the child should be separately represented by an independent lawyer acting in accordance with the professional and ethical obligations of a legal practitioner, the requirements of the Act and in the best interests of the child.

3.The application to substitute the applicant as the child’s legal representative must be dismissed because there exists a clear conflict between the interests of the applicant and the best interests of the child.

Child Support (Assessment) Act 1989 (Cth) s 3, s 4; Children and Young People (Safety) Act 2017 (SA) s 51, s 53, s 62, s 63, s 68; Education and Children's Services Act 2019 (SA) s 68, s 69; Family Law Act 1975 (Cth) s 61, s 66, s 68LA; Guardianship of Infants Act 1940 (SA) s 6; Slavery Abolition Act 1833 (3 & 4 Will. IV c. 73); Supreme Court Act 1935 (SA) s 19C, s 50; Uniform Civil Rules 2020 (SA) r 23.7, r 25.6, r 212.4, r 213.1, r 214.1, referred to.

The Chief Executive of the Department for Child Protection, MT, DT and ET delivered 14 December 2020 (Magistrate Davis), discussed.

Allianz Australia Insurance Ltd v National Jet Systems Pty Ltd [2004] SASC 438; Cooper v Stuart (1889) 14 App Cas 286; Harris Scarfe (in liq) v Ernst & Young (No 2) [2005] SASC 168; Rose v South Australian Housing Authority [2021] SASCA 9; Sargent v Selwyn [2019] FamCAFC 232, considered.

DT v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2021] SASCA 64

Court of Appeal – Civil: Doyle and Livesey JJA

THE COURT:

1. The applicant seeks leave to appeal to the Court of Appeal from the refusal by a Judge of the Supreme Court to make a declaration as to whom a child “belongs”.[1]  The applicant has also sought leave to appeal against an order refusing to remove the legal practitioner appointed to separately represent the interests of the child. 

   [1]     This was an oral application made before Parker J on 4 June 2021.

2. Further, by an application dated 10 June 2021, the applicant also asks for an order that he be substituted as the child’s representative.  Whilst that application should ordinarily be considered by the Judge with the carriage of this matter in the General Division, it is related to the issue of the representation of the child that is now before this Court, and it is convenient that it be addressed by this Court.

3. We sit today as a bench of two pursuant to a direction made by the President pursuant to s 19C of the Supreme Court Act 1935 (SA) and r 212.4(c) of the Uniform Civil Rules 2020 (SA) (the Rules).

4. The child in this case is four years of age. She has been diagnosed with autism spectrum disorder and requires therapy, speech pathology and psychological support. Following a long trial, spread over a number of months, the Youth Court found that the child’s mother is unable to provide the care that the child requires.[2] The Youth Court placed the child under the guardianship of the Chief Executive of the Department for Child Protection pursuant to s 53(1)(g) of the Children and Young People (Safety) Act 2017 (SA) (the Act).

   [2]     The Chief Executive of the Department for Child Protection, MT, DT and ET, delivered 14 December 2020 (Magistrate Davis).

5. The applicant became involved in those proceedings after they commenced when he established that he was the child’s father by means of a DNA test result. However, his participation in the proceedings thereafter was described by the Youth Court as “somewhat sporadic”, with him described as “eventually disengaging”. The Youth Court found that the applicant had had only limited involvement in the child’s life and there “cannot be any suggestion” that she be placed into his care.[3]

   [3]     The Chief Executive of the Department for Child Protection, MT, DT and ET, delivered 14 December 2020, [7].

6. An appeal against the guardianship order by the applicant is listed for hearing before the General Division Judge on 22 June 2021. At the same time, the Judge will hear the applicant’s custody application, made pursuant to s 6 of the Guardianship of Infants Act 1940 (SA), that the infant be placed into his immediate custody on the basis that he is her father. The Chief Executive has been made a respondent to that application and the child’s mother has been named as an interested party. The Crown proposes to apply to strike-out that application. That too will be heard on 22 June 2021.

7. During a hearing on 20 April 2021, the Judge declined to make the declaration sought by the applicant because the relevant issue is not to whom the child belongs but, rather, whether the Youth Court should have placed the child under the guardianship of the Chief Executive of the Department for Child Protection.

8. While the Judge made no formal order, we are prepared to assume that the refusal by the Judge to make the declaration is an “order” that may be appealed.[4]  Though sought here by way of an interlocutory application, an application for a declaration seeks final relief.  It is not necessary to decide whether leave to appeal is required where the order refused final relief.[5]  However, an extension of time is required because the Judge’s refusal occurred on 20 April 2021 and the application was not made until 31 May 2021, more than 21 days after the order, see r 214.1(1) of the Rules.

   [4] By s 50(6)(b) of the Supreme Court Act 1935 (SA) a relevant “judgment” for the purposes of an appeal includes “an order or direction; and … a decision not to make an order or direction”.

   [5]     See r 213.1(1)(a) of the Uniform Civil Rules 2020 (SA).

9. In our opinion, an extension of time should be refused because the applicant’s appeal is without merit.  If leave to appeal is required, it should be refused for the same reason.  The Judge was right to refuse to make a declaration in the terms sought.  The ordinary meaning of the word “belong” is concerned with property or ownership.  A child is not property.  No one can “own” another person.[6]  In so far as the applicant has in mind a broader meaning, such as parentage or familial connection, that is not in issue.[7]  To the extent that the applicant has something even broader in mind, such as a parent’s interest in a child’s welfare or custody, they are not in issue either. The issue in this case is guardianship.

   [6]     The notion that a person is owned by another, and a form of property known as a slave, was abolished and rendered unlawful by the Slavery Abolition Act 1833 (3 & 4 Will. IV c. 73), see s XII: “…Slavery shall be and is hereby utterly and for ever abolished and declared unlawful throughout the British Colonies, Plantations, and Possessions Abroad”.  As the legislation explicitly applied to the Australian colonies, it formed part of Australian law by paramount force. See also Article 8 to the International Covenant on Civil and Political Rights, to which Australia is a party.

   [7]     A declaration would therefore have been of only academic interest: Allianz Australia Insurance Ltd v National Jet Systems Pty Ltd [2004] SASC 438, [63] (Doyle CJ, Duggan and Anderson JJ).

10. The parents of a child under the age of 18 years are, absent an order of the Court, guardians with joint responsibility for their child.[8] In this case, a guardianship order has been made under the Act and so the ordinary duties and obligations of a parent devolve to the Chief Executive, to the exclusion of any other party, (see s 68 of the Act).

    [8] Sections 61B and 61C of the Family Law Act 1975 (Cth). This responsibility incorporates duties to maintain the child, s 66C of the Family Law Act 1975 (Cth) and ss 3 and 4 of the Child Support (Assessment) Act 1989 (Cth); and to educate the child, ss 68 and 69 of the Education and Children's Services Act 2019 (SA).

11. At a later hearing on 4 June 2021, the applicant sought an order that the legal practitioner appointed to separately represent the interests of the child be removed. There is apparently no issue about the legal practitioner who has been appointed, or his conduct, rather the applicant questions the desirability of separate legal representation.  That application was dismissed by the Judge.  The applicant seeks leave to appeal against that dismissal, and the basis upon which leave may be granted has recently been considered by this Court.[9]

    [9]     “Whether permission or leave to appeal to this Court should be granted is ultimately determined by the interests of justice…Typically, that requires that it be shown that the appeal is reasonably arguable and of sufficient substance to justify consideration by the Court of Appeal”: Rose v South Australian Housing Authority [2021] SASCA 9, [15] (Doyle and Livesey JJA). See Harris Scarfe (in liq) v Ernst & Young (No 2) [2005] SASC 168, [4]-[11] (Bleby J).

12. In our view, leave to appeal must be refused: s 51 of the Act requires that a child the subject of an application for a guardianship order must be a party to those proceedings and s 62 requires that the child be given a reasonable opportunity to present her or his views. By s 63(1)(b), where a child is not capable of giving instructions,[10] then a legal practitioner must act in accordance with that “practitioner’s own view of the best interests of the child”. In our view, no basis for removal has been disclosed by the applicant.

    [10] Section 63(1)(b) of the Children and Young People (Safety) Act 2017 (SA) provides: “to the extent that the child or young person has not given, or is not capable of giving, instructions, the legal practitioner must act in accordance with the legal practitioner’s own view of the best interests of the child or young person”.

13. The child should in this case be separately represented by an independent lawyer acting in accordance with the professional and ethical obligations of a legal practitioner, the requirements of the Act and in the best interests of the child.[11]

    [11] See for example ss 68LA(2) and 68LA(3) of the Family Law Act 1975 (Cth) and Sargent v Selwyn [2019] FamCAFC 232.

14. In these circumstances, it is not in the interests of justice to grant leave to appeal: it is not reasonably arguable that there should be no independent legal representation of the child. In these same circumstances, the application to substitute the applicant as the child’s legal representative must also be dismissed because there exists a clear conflict between the interests of the applicant and the best interests of the child.[12]

    [12]   The applicant cannot be appointed a litigation guardian or represent the child: see rr 23.7(2)(b) and 25.6.

15. The orders of the Court are:

    1.The extension of time to pursue the appeal dated 31 May 2021 is refused and, to the extent necessary, the appeal is dismissed.

    2.The oral application for leave to appeal dated 4 June 2021 is dismissed.

    3.The application dated 10 June 2021 is dismissed.

16. There will be an order that the applicant pay the costs of the Respondent and of the child’s representative of and incidental to the applications.