DT v Chief Executive of the Department for Child Protection - [2021] SASC 138

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
DT v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2021] SASC 138
Judgment of the Honourable Justice Parker
3 December 2021
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FOR BIAS IN JUDICIAL PROCEEDINGS
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN
This is an appeal against a decision made by a Magistrate of the Youth Court to place the appellant’s daughter 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) Act2017 (SA) (the Safety Act). The appeal was heard together with the appellant’s application under s 6 of the Guardianship of Infants Act 1940 (SA) (the 1940 Act) that the Court make an order placing his daughter in his custody.
The appellant advanced six different grounds of appeal. Grounds 1 and 2 are complaints of actual bias and apprehended bias on part of the Magistrate. Ground 3 is a complaint about the Magistrate’s direction that the appellant must provide to the Court a list of questions that he intended to ask a certain witness. Ground 4 contends that the Magistrate overlooked what the appellant deemed to be a “foundational ground”. Ground 5 contends that the Magistrate erred in his decision to admit a report into evidence without the authors being made available for cross-examination. Ground 6 is a complaint regarding the Magistrate’s refusal to allow the appellant to recall all witnesses who had given evidence during his absence from the trial.
The appellant also filed a separate application for an order under s 6 of the 1940 Act granting him immediate custody of ET as a basis for the Court to make an order placing the child in his custody should his appeal succeed. The respondent applied for the application to be struck out on the basis that the appellant is not a person who was entitled to bring an application under the 1940 Act and that Act cannot be used as a de facto appeal against a decision made by the Youth Court under the Safety Act.
Held, per Parker J, dismissing the appeal and granting the respondent’s strike out application:
1.The appellant’s complaints of the Magistrate do not support his contentions of actual bias and apprehended bias. A reasonable independent lay observer who was fully informed of the facts would not conclude that the Magistrate could not bring an independent mind to the making of the decision about the guardianship of ET in light of his Honour’s direction not to bring phones into the courtroom.
2.Grounds 3 to 6 do not relate to decisions that are capable of being the subject of an appeal under s 22 of the Youth Court Act 1993 (SA), nor do they support the appellant’s contentions of actual bias and apprehended bias.
3.The appellant’s application under s 6 of the 1940 Act is struck out. Firstly, the application serves no purpose as the appeal is to be dismissed. Secondly, an application under the 1940 Act should not be used solely as a means to avoid the exercise by the Youth Court of its jurisdiction under the Safety Act.

Children and Young People (Safety) Act 2017 (SA) s 53(1)(g), s 84; Commonwealth Powers (Family Law) 1986 (SA) s 3(1); Family Law Act 1975 (Cth) s 69ZK; Family Law Regulations 1984 (Cth) reg 12B, sch 5; Family Relationships Act 1975 (SA) s 7; Guardianship and Administration Act 1993 (SA); Guardianship of Infants Act 1940 (SA) s 3(2), s 6; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 23(4)(a); Supreme Court Act 1935 (SA) s 50; Youth Court (Care and Protection) Rules 2018 (SA) r 16(3)(j); Youth Court Act 1993 (SA) s 22(1), s 22(2)(b)(i), referred to.
BC v The Public Advocate (No 4) (2019) 133 SASR 587; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; IOOF Australia Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; Stone v Moore (2015) 122 SASR 54, applied.
DT v Chief Executive of the Department for Child Protection [2021] SASCA 64; Fountain v Alexander (1982) 150 CLR 615; Metropolitan Properties Co (FGC) Ltd v Lannon [1968] 1 QB 577; R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256; Siewertsz Van Reesema v Police [2009] SASC 8; Wedd v Wedd [1948] SASR 104, discussed.
ALA v Minister for Immigration and Border Protection [2016] FCAFC 30; Asuman [2017] SASC 123; Baird v Magripilis (1925) 37 CLR 321; In Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700; Johnson v Johnson (2000) 201 CLR 488; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 95 ALJR 128; Sunlight Nominees Pty Ltd v Zotti [2017] SASC 176, considered.

DT v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2021] SASC 138
Appeal to a Single Judge: Civil

PARKER J: This is an appeal against a decision made by a Magistrate of the Youth Court to place the appellant’s daughter under the guardianship of the Chief Executive (the CEO) of the Department for Child Protection (the Department) pursuant to s 53(1)(g) of the Children and Young People (Safety) Act 2017 (SA) (the Safety Act).
The appellant has also applied for an order under s 6 of the Guardianship of Infants Act 1940 (SA) (the 1940 Act) placing his daughter in his custody. That application was heard on the same day as the appeal but with the applicant making his submissions in writing at a later date. As I have determined that the appeal should be dismissed, it is not strictly necessary to decide the application under the 1940 Act. However, I have considered the issues presented by the application and decided that it should be struck out as sought by the respondent.
The grounds of appeal and orders sought
The amended grounds of appeal are as follows:
1.Bias.
2.Apprehended bias.
3.Unreasonable requests from unrepresented parties.
4.Overlooked foundational ground.
5.Accepted evidential material, despite the request of unrepresented party, not to be accepted unless the author of the evidential material come to be examined.
6.Requests by the unrepresented parties for witnesses to be brought to the trial, being declined.
The orders sought by the appellant are as follows:
1.The matter not be remitted to the Youth Court.
2.The Order that [his daughter] to be in the Guardianship of the Chief Executive for the Department of Child Protection until she attaints [sic] the 18 year old age, be rescind [sic].
3.The immediate custody of my child ET to me, her father.
It is convenient to refer to DT as the father, MT as the mother and ET as the child.
The mother was included as an interested party in both the appeal and the application under the 1940 Act. She participated in two directions hearings relating to the appeal but on each occasion she disconnected the telephone before the hearing was completed. She did not participate in the appeal hearing nor did she make any written submissions. Arrangements had been made for the mother to participate in the hearing by telephone. However, it was not possible for my staff to contact her as had been arranged and the hearing proceeded in her absence. The Court has not had any contact from her since that time.
Background
The child was born in early 2017 and is now aged 4 years. In late August 2018, following the birth of a stillborn child, the mother started to drink heavily. On 31 August 2018 police and ambulance officers were called to her home following a serious incident in which she had stabbed the father and was herself wounded. The mother was highly intoxicated, alcohol containers were scattered about and concerns were raised about the cleanliness of her home. The child, who was then aged 18 months, was present and was found to be wearing bloodstained clothing and it has been suggested that she was playing in blood. The father refused to cooperate with the police and the mother was not charged with any offence. However, the Department took immediate action and the child was removed from the care of the mother. Since that time the child has remained under the guardianship of the CEO of the Department and in the care of Ms G, her mother’s paternal aunt and thus her great aunt.
On 3 September 2018 the Youth Court made what was then known as an investigation and assessment order placing the child under the guardianship of the CEO of the Department for a period of 42 days. During that period information was gathered to assist in the making of a decision as to whether it was safe to return the child to the care of her mother or whether a further order should be sought from the Youth Court. Subsequently, the CEO applied to the Youth Court for a 12 month guardianship order which was granted on 26 October 2018.
On 12 August 2019 the CEO applied for an order placing the child under her guardianship until she attains the age of 18 years pursuant to s 59(1)(g) of the Act. When that application was made, the identity of the child’s father was not known. However, the application was amended on 3 October 2019 after DNA testing confirmed that the appellant was the father of the child.
The decision of the Magistrate
As the grounds of appeal primarily focus on particular procedural decisions made by the Magistrate, it is not necessary to explore his Honour’s reasons in great detail. However, it is important to note the observations made by the Magistrate about the participation of the father in the proceedings. His Honour stated:
Although the respondent father’s participation has been somewhat sporadic, eventually disengaging from the proceedings, he too, opposes the order. Due to his limited involvement in ET’s life, there cannot be any suggestion that ET be placed in his care, with or without the mother. Rather, I apprehend that he is supportive of the mother’s position.
The trial in the Youth Court extended over 15 hearing days over a period of more than eight months. The majority of witnesses were called by the CEO. These witnesses comprised psychiatrists, psychologists and social workers and the child’s carer, her great aunt Ms G. They were cross‑examined by the mother, and in some instances, by the father. The mother also called several witnesses, a social worker and a psychiatrist who had had extensive dealings with her. The Magistrate found that the child had very high needs and had been recently diagnosed with autism spectrum disorder (ASD) and required occupational therapy, speech pathology and psychological support.
The Magistrate accepted the evidence of the child psychiatrist, Dr Jon Jureidini, that the child was “damaged and requires therapy and remediation”. His Honour also found that the child required “highly attuned, consistent and predictable care, coupled with ongoing therapy”. His Honour found that the mother was not able to provide the child “with the appropriate and highly attuned care that she so evidently needs”. Ms G had extensive experience as a carer and was aware of the child’s needs. She had shown herself to be readily capable of providing the required care and was participating in the provision of dyadic therapy with professional assistance and was “committed, caring and nurturing”.
The Magistrate concluded with the finding that:
Despite the mother’s evident love of her daughter, her desire to effect change to safely and appropriately care for ET and the many positive steps taken by her to this end, I am not satisfied that she can overcome the obstacles she faces within a timeframe commensurate with ET’s needs.
For these reasons, the Magistrate was satisfied that it was appropriate to make the long-term order sought by the CEO. Thus, the child was placed in the guardianship of the CEO until she attains the age of 18 years. It is that decision which is the subject of this appeal.
The appeal to the Court of Appeal
It is appropriate to refer briefly by way of background to the appeal by the appellant to the Court of Appeal in DT v Chief Executive of the Department for Child Protection.[1]
[1] [2021] SASCA 64.
Prior to the hearing of the present appeal, the appellant sought a declaration as to whom the child “belonged”. I rejected that application on the basis that the common law does not recognise property in human beings and had not done so since the abolition of slavery. The relevant issue was guardianship of the child, not ownership. I had attempted to explain that principle at an earlier directions hearing.
The father also sought an order that the child’s separate child representative not be permitted to participate in the appeal hearing or, alternatively, that he (the father) should be appointed as the separate child representative. I dismissed that application on the basis that the Act clearly requires the child to be separately represented and the father could not be appointed because of the obvious conflict of interest.
So as to avoid further delay, I referred the father’s oral application for permission to appeal on both issues to the Court of Appeal and arranged for the application to be dealt with expeditiously. The Court of Appeal refused the father leave to appeal on both questions.
The appellant’s submissions
Although the father has referred separately in grounds 1 and 2 to complaints of bias and apprehended bias, he did not explain the distinction that he was seeking to draw, if any.
The father reminded the Court of the well-known aphorism of Lord Hewart CJ (with Lush and Sankey JJ agreeing) in R v Sussex Justices; Ex parte McCarthy that “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtably be seen to be done”.[2] The father also referred to the judgment of Lord Denning MR in Metropolitan Properties Co (FGC) Ltd v Lannon where his Lordship adopted and applied the observation of Lord Hewart CJ in the Sussex Justices case.[3] He sought to draw further support from the judgment of the Full Court in IOOF Australia Trustees Ltd v SEAS Sapfor Forests Pty Ltd.[4]
[2] [1924] 1 KB 256 at 259.
[3] [1968] 1 QB 577.
[4] (1999) 78 SASR 151.
It was clear from the father’s submissions that the complaints of bias and apprehended bias arose out of the same factual situation. Those contentions relate to a direction given by the Magistrate on 31 July 2020 that neither the mother nor the father were to have mobile telephones in the courtroom. The father contends that this direction displayed bias and was discriminatory as neither counsel for the CEO nor the separate child representative were required to surrender their phones. He submitted that as he had not used his phone in court he was being discriminated against and punished.
The father subsequently applied for the Magistrate to recuse himself from further hearing the matter. In his written and oral submissions, he contended that the Magistrate showed actual bias, apprehended bias, discrimination and a lack of impartiality. The Magistrate rejected those contentions in a ruling made on 25 August 2020.
The father referred in his appeal submissions to the fact that he had informed the Magistrate that he did not intend to use his phone while he was in Court. He also informed this Court that his mother was seriously ill while the Youth Court proceedings were on foot. His phone was switched to silent but the vibration would alert him if he received a call from his brother informing him that his mother’s condition had deteriorated.[5] The father had not informed the Magistrate of this issue.
[5] The father informed the Court while this appeal was at the interlocutory stage that his mother had passed away.
It became apparent that the father’s third ground of appeal was directed at an order made by the Magistrate on 8 April 2020 which required him to provide to the Court a list of the questions he wished to ask the witness, Ms Feleppa a senior Departmental social worker, by close of business on 15 April 2020. The Registry was then to provide a copy of the questions to all parties. The father did not comply with that direction.
The father submitted that the approach adopted by the Magistrate was unheard of. The direction that he was to provide questions in advance had not been made to assist him to cross-examine Ms Feleppa but rather to give his opponents the opportunity to know what questions he was going to ask. He said that this applied to not merely some of the questions he intended to ask but to all questions. The father submitted that this direction, which did not apply to the other parties, demonstrated bias on the part of the Magistrate.
Closely related to this third ground of appeal was the reference in the fourth ground to “overlooked foundational ground”. The point made by the father was that both counsel for the CEO and the Magistrate had stated that the cross‑examination by the father of Ms Feleppa had laid a foundation for submissions. The father submitted on the appeal that by indicating that he had laid the foundation for submissions the Magistrate was accepting that the CEO’s position that the child had been traumatised while in the custody of her mother had “crumbled down” as a result of his cross‑examination of Ms Feleppa. The father further submitted that if the Magistrate did not agree with his contention that the evidence of Ms Feleppa had “crumbled down” he should not have curtailed the cross-examination.
In substance, the fifth ground of appeal may be paraphrased as complaining that documents were admitted into evidence notwithstanding a request that the author be made available for cross-examination. During the course of submissions, it became apparent that the father was referring to a ruling made by the Magistrate on 22 October 2020 when the mother objected to the tender of a document concerning the child unless the authors were made available for cross‑examination. The Magistrate rejected that submission because the trial had reached a late stage and he was not prepared to adjourn the matter for further evidence. His Honour considered that if this were to occur it would raise a question as to whether other witnesses should be recalled and further closing submissions made and so forth.
The sixth and final ground of appeal advanced by the father is based on his complaint that requests by him and by the mother for witnesses to attend the trial had been refused. The circumstances relating to this ground of appeal have been explained in the respondent’s submissions to which I refer at [47] to [49] below.
Request to admit further evidence on the appeal
The father also requested leave to have admitted into evidence on the appeal an affidavit dated 21 June 2021. That affidavit was said to support his contention that the Magistrate should have recused himself on the ground of bias. The affidavit exhibited correspondence between the father and the Magistrate and the Youth Court Judge in October and November 2020. I received the affidavit de bene esse. In other words, I received the affidavit and exhibits for the purpose of hearing the father’s appeal submissions but would decide later whether that material should be admitted into evidence on the appeal.

The first exhibit to the father’s affidavit (Exhibit DT 1) is a letter addressed to the Judge dated 14 October 2020. The father complains in the letter that the Magistrate had conducted the proceedings in a way that demonstrated actual bias rather than apprehended bias. For that reason, he requested that the Magistrate be removed from the proceedings and a judge rehear the case. He also asked that the Court provide to him all the documents provided to the Court by the parties from 24 August 2020 onwards.
The second document exhibited to the father’s affidavit (DT 2) was a notice of appeal from what was said to be an interlocutory decision of the Magistrate dated 25 August 2020. The father deposed in paragraph 1(b) of the affidavit that the Youth Court Registry had received the notice of appeal on 27 October 2020 but had not stamped the document. The grounds of appeal are generally similar to those advanced in the appeal to this Court.
The third exhibit (DT 3) to the father’s affidavit is a copy of the second exhibit but with amendments made by the Youth Court Registry. The amendments appear to be intended to correct errors of grammar and spelling and, in one instance, to remove repetition.
The fourth exhibit (DT 4) was a copy of a letter addressed to the Magistrate dated 4 November 2020 in which the father sought a copy of three rulings made on 22 October 2020. He also sought permission to view the Court file and an order that all documents that had been filed or tendered in his absence be made available to him.
The fifth and final exhibit (DT 5) to the father’s affidavit was a further notice of appeal from what was said to be an interlocutory judgment. In this instance the father sought to appeal against the refusal of the Magistrate to recuse himself on 22 October 2020 following an allegation of bias. The father complained in ground 6 of the notice of appeal that the Magistrate had not required the authors of the document tendered by the CEO to attend for cross-examination.
The father deposed in his affidavit that the Youth Court Registry had declined to stamp the notices of appeal. These documents had been subsequently returned to him by the Registry and he was informed that the Judge would not hear the appeals. For that reason, the father submits in his affidavit that the Youth Court is failing to comply with the provisions of the Safety Act and for that reason if this Court upholds his appeal the matter should not be remitted to the Youth Court but decided by this Court.
The father also stated in his affidavit that he had never “resigned, abandoned or disengaged” himself from the Youth Court proceedings but had failed to attend in protest because of his view that the Magistrate was biased in light of the decision made on 25 August 2020. He also stated that his absences from the proceedings prior to that date had been due to illness and had been supported by medical certificates.
In the context of the latter paragraph, I note that the father has complained about the Magistrate’s statement that he was “disengaged” from the proceedings. He says he was not “disengaged” but closely monitoring the proceedings. In my view, nothing turns on the Magistrate’s choice of word. The fact is that the father chose not to be present at the trial after 25 August 2020.
The respondent’s submissions
The respondent submits that the unqualified reference to “bias” in ground 1 must be interpreted as an allegation of actual bias. Any allegation of bias should be distinctly identified, fully particularised and clearly proved before the Court can act upon it.[6] An allegation of actual bias should not be lightly made and there is a high bar to the establishment of such an allegation. As the father has not particularised his allegation of actual bias the Court should not entertain this allegation.
[6] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] (Gleeson CJ and Gummow J, [127] (KirbyJ).
The respondent submits that in order to make out his allegation of apprehended bias in ground 2 the father must demonstrate that a fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial mind to the resolution of the question that he was required to decide.[7] That requires that the father should identify the matter that might lead the Magistrate to decide the case other than on its merits and articulate the logical connection between that matter and the deviation from the course of deciding the matter on its merits.
[7] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 348 (Gleeson CJ, McHugh, Gummow and Hayne JJ).
The Magistrate dealt immediately with the father’s allegation of bias and the request that he recuse himself as soon as it was raised during the trial. The Magistrate endeavoured to understand properly the argument being advanced by the father. His Honour gave the father the opportunity to put forward an argument as to how the ruling that he and the mother not bring their phones into Court might prejudice him in the proceedings. However, the father made no submission as to the logical connection between the direction that he not bring his phone into Court and the deviation from the course of deciding the matter on its merits.
The respondent submits that the Magistrate provided the father with all reasonable assistance in the conduct of the trial. In that light, the respondent submits that a fair-minded lay observer would conclude that the Magistrate brought an impartial mind to the decision that he was called upon to make. Accordingly, the respondent submits that both grounds 1 and 2 should be dismissed.
The respondent submits that ground 3 does not identify a proper ground of appeal nor assert any form of error. If the father is asserting that the request that he provide a list of questions that he wished to ask the witness Ms Feleppa in further cross-examination constituted a denial of procedural fairness, that cannot be established. The respondent points to the fact that the father had ample notice of the date on which Ms Feleppa was scheduled to give evidence. He conceded at the commencement of the cross-examination of Ms Feleppa that he had left the notes he had prepared for cross-examination at home and also the transcript. Nevertheless, he proceeded to cross-examine Ms Feleppa at some length and the Magistrate provided significant assistance to him so that the questioning remained relevant to the proceedings. At the conclusion of that cross-examination the Magistrate gave the father a further opportunity to provide any further questions that he proposed to ask Ms Feleppa in writing. That occurred in circumstances where the father’s cross-examination of the witness had been subject to multiple objections by counsel for the other parties and it was necessary for the Magistrate to provide repeated guidance to the father as to the proper conduct of cross‑examination. In the circumstances, the respondent submits that the conduct of the hearing overwhelmingly demonstrates that the father was afforded procedural fairness in relation to the opportunity he was given to cross‑examine Ms Feleppa. The respondent also pointed the fact that s 56(1) of the Safety Act requires that all proceedings under the Act must be dealt with expeditiously. In addition, r 16(3)(j) of the Youth Court (Care and Protection) Rules 2018 (SA) empowers the judicial officer to make directions that facilitate the conduct of a trial. While that specific rule relates to orders that may be made at a status conference, the Court necessarily has a general power to make orders that will facilitate the expeditious conduct of proceedings.
In relation to ground 4 the respondent submits that the submission put to the Court on behalf of the CEO was that through his cross-examination of Ms Feleppa the father had laid a sufficient foundation for him to make submissions at the close of the trial as to what he contended the findings should be in relation to her evidence. The Magistrate was concerned that the father was effectively seeking to reproduce in oral evidence all of the documentary evidence that had already been put before the Court. This ruling was not made for the benefit of the other parties but so as to assist in the expeditious disposition of the proceedings and in view of the objectionable nature of the questions that the father had previously asked the witness. In those circumstances it was entirely proper for the Magistrate to direct the father to identify the further questions that he proposed to put to the witness. He did not object to that course at the time. Furthermore, he did not seek to put any further questions to the witness. The respondent submits that as ground 4 does not disclose any appealable error it should be dismissed.
The respondent points out that the complaint by the father about extra materials received into evidence without the author being made available for cross‑examination concerns a ruling by the Magistrate on 22 October 2020 in response to a submission by the mother that a report prepared by Luna Gaoni, a psychologist, and Melissa Seddon, a speech pathologist, both of the Gordon McKay Child Development Unit at the Lyell McEwin Hospital should not be received into evidence without the authors being available for cross‑examination. They had diagnosed the child as displaying the symptoms of ASD and requiring substantial support.
Counsel for the CEO had submitted to the Magistrate that the Court was not bound by the rules of evidence and it was a matter for his Honour what weight he should attach to the report given that the authors had not been cross‑examined. The Magistrate specifically stated that he would determine the weight that should be attached to the report when he ruled that it should be admitted into evidence.
The respondent submits that as the Youth Court is not bound by the rules of evidence and may inform itself as it sees fit, the Magistrate was entitled to exercise his discretion to receive the report into evidence and then determine what weight should be attached to it because the authors had not given evidence. The respondent submits that ground 5 should be dismissed as it does not disclose any appealable error.
The respondent also submits that ground 6 does not assert any appealable error and does not constitute a proper ground of appeal. The father was required by rule 14 of the Youth Court (Care and Protection) Rules 2018 (SA) to provide prior to the pretrial conference held on 6 November 2019 a list of the witnesses he intended to call at trial. However, he failed to comply with that rule. Nevertheless, the application made by the father on day three of the trial to call witnesses was entertained by the Magistrate. His Honour granted him the opportunity to identify in writing those witnesses he intended to call and the forensic purposes for calling each witness. However, the father failed to comply with that order.
On 1 July 2020 the father brought an application for the recalling of witnesses so that he could cross-examine them as he had been absent for the previous five days of the trial, allegedly due to illness. Even though he had not sought an adjournment, and had invited the Court to proceed in his absence, the Magistrate gave him the opportunity to identify whom he wished to recall and what he proposed to ask them. The matter was then listed for a status conference on 31 July 2020.
The Magistrate held at the conclusion of the status conference that there had not been any cogent forensic purpose disclosed in either the oral or written submissions by either the father or by the mother to justify the recalling of witnesses. The respondent submits that the Magistrate appropriately dealt with the application for witnesses to be recalled. Ground 6 should be dismissed.
Submissions by the separate child representative
The separate child representative submits that the test of actual bias is whether a judicial officer is so committed to a particular outcome that they will not alter their position regardless of the evidence or submissions presented to them.[8] Such an allegation must be distinctly made and clearly proven. That has not occurred here and there are no facts which could sustain the allegation.
[8] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] (Gleeson CJ and Gummow J), [127] (Kirby J).
The separate child representative advances essentially the same submissions as the respondent in relation to the question of apprehended bias but makes the additional observation that the reasonableness of any suggestion of apprehended bias must be considered in the context of ordinary judicial practice.[9] A predisposition or indication that a matter would be determined in a particular way does not offend the bias rule unless it is “sufficiently specific or intense” so as to amount to prejudgment.[10]
[9] Johnson v Johnson (2000) 201 CLR 488 at [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[10] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531; ALA v Minister for Immigration and Border Protection [2016] FCAFC 30 at [11].
In relation to the complaint by the father that he was not permitted the opportunity to resume cross‑examination of Ms Feleppa, the separate child representative points to the fact that her evidence had been spread over several days at a time when she was about to go on maternity leave and her departure was accelerated due to the COVID pandemic. The Court was required to allocate the available time to deal with her evidence between four interested parties. The separate child representative submits that it is apparent from the transcript that the Magistrate made every effort to get the father to focus in his cross‑examination on the important topics. However, he chose to focus significantly on the relationship between the child and her mother rather than on his relationship with the child. In fact, even the mother became frustrated with his cross-examination. That is apparent from two identified passages in the transcript. The separate child representative submits that it was apparent from the transcript that the actions of the Magistrate did not indicate any bias against the father that might call into play, let alone satisfy, the apprehended bias test.
The separate child representative further submits that consideration of the bias question must occur against the practical aspects of the trial. In that respect the separate child representative submits that the father did not have a consistent and regular engagement with the trial process and his relationship with the child was effectively non-existent.
The separate child representative also submits that the ruling made by the Magistrate on 22 October 2020 whereby the report stating that the child had been diagnosed with ASD was received into evidence cannot be relied upon by the father to support his contention of bias. That ruling was made after he had disengaged from the proceedings and was not present. Moreover, the decision did not affect him.
Consideration
Actual bias
In order to establish actual bias it is necessary to prove that the decision maker approached the issues they were to decide with a closed mind or had prejudged the matter and because of either partiality in favour of a party or some other form of prejudice affecting the decision, could not be swayed by the evidence or submissions.[11] A high evidentiary standard applies where actual bias is alleged.[12]
[11] In Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 at [37]-[39]; Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Law Book Co, 5^th ed, 2013) at [9.30].
[12] Ibid.
Apprehended bias
The leading authority dealing with an apprehension of bias is the decision of the High Court in Ebner v Official Trustee in Bankruptcy.[13] In that case Gleeson CJ, McHugh, Gummow and Hayne JJ stated that:[14]
… a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.”
[13] (2000) 205 CLR 337.
[14] Ibid at 344-345.
It is to be noted that the High Court incorporated into that passage the observation made by Lord Hewart CJ in the Sussex Justices case, which was the core of the father’s submission on the legal principles.
Grounds 1 and 2
The fundamental submission made by the father is that there was no rational basis for the Magistrate to distinguish between him and the mother on the one hand and counsel for the CEO and the separate child representative on the other when he prohibited the parents from bringing their phones into Court. I do not accept that contention. The most important basis for differential treatment was that the two legal practitioners were officers of the Court who owe duties to the Court and may be subject to disciplinary action for acts of discourtesy towards the Court. Furthermore, lawyers must be taken to be aware, particularly those who appear regularly in the Youth Court jurisdiction, of the strict confidentiality provision in s 164 of the Safety Act. Neither the father nor the mother were subject to the disciplinary regime that is applicable to legal practitioners and it could not be assumed that they were necessarily aware of the operation of s 164. In actual fact, it was the suggestion that the mother was using Facebook during the course of the hearing that resulted in the Magistrate making the order that phones must not be brought into Court by the parents. While there was no suggestion that the father was acting in that way, his Honour noted that the parents appeared to have been working collaboratively, at least to some extent, during the course of the proceedings.
The father had the opportunity to inform the Magistrate of his concern that he may receive an urgent message about his mother when the Magistrate asked if he had used his phone in Court. However, the father did not use that opportunity to inform the Magistrate of the situation. If he had done so, it is possible that the Magistrate might have taken a different approach.
I am not persuaded that a reasonable independent lay observer who was fully informed of the facts to which I have referred would conclude that the Magistrate could not bring an independent mind to the making of the decision about the guardianship of the child in light of the direction he gave about not bringing phones into the courtroom. I consider that a properly informed reasonable observer would readily understand that the Magistrate decided the phones issue as he did for sound reasons based on the proper management of the courtroom and the proceedings more generally combined with the need to ensure compliance with s 164. I dismiss grounds 1 and 2 of the appeal.
Ground 3
The complaint in ground 3 about the Magistrate’s direction that the father must provide to the Court a list of questions that he wished to ask Ms Feleppa is not, of itself, a valid ground of appeal. Section 22(1) of the Youth Court Act 1993 (SA) provides that a party to proceedings in the Youth Court may, “appeal against any judgment given in the proceedings”. The word “judgment” is defined in s 3 of that Act to include a declaration or order.
While the requirement that the father provide a list of all questions that he wished to ask Ms Feleppa was described as an “order” in the certificate of record dated 8 April 2020, a question arises as to whether it was in fact an order within the meaning of s 22 and the definition in s 3 of the Youth Court Act. That question was considered by King CJ in Legal Practitioners Complaints Committee v A Practitioner in the context of s 50 of the Supreme Court Act 1935 (SA) where his Honour stated:[15]
There is no completely satisfying definition of either “judgment” or “order” and no exhaustively definitive way of distinguishing between judicial acts which should be characterised as judgments and judicial acts which should be characterised as orders. Fortunately it is unnecessary for present purposes to make such a distinction. If the decision falls within either description it is appealable.
A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact law or procedure made during the course of a hearing. Such incidental rulings are not judgments or orders and are therefore not appealable even by leave.
[15] (1987) 46 SASR 126 at 127.

King CJ went on to note that in the case before the Full Court an order had been drawn up and sealed on the basis of a certificate prepared by the Judge’s associate. However, that was not conclusive as to whether or not the decision (to use a neutral term) was or was not an order. His Honour concluded, from the particular nature of the decision made in that case, that it was an order and therefore appealable.[16]
[16] Ibid at 128.
The judgment of King CJ recognises that merely because a decision is recorded as an order of the Court does not necessarily mean that it must be regarded as an order when deciding whether it is appealable under s 22 of the Youth Court Act or, as was the case in the matter King CJ was considering, under the cognate provision in s 50 of the Supreme Court Act. The approach taken by King CJ indicates that it is necessary to determine the legal and practical effect of the decision or direction rather than rely solely upon the language that has been used to describe it.
I consider that the direction that the father was to submit his questions that he proposed to ask Ms Feleppa in writing was clearly an incidental ruling given in the course of the hearing rather than a decision on a substantive question raised in the proceedings or on an interlocutory issue that arose in those proceedings. It did not differ in character from the examples of incidental rulings referred to by King CJ. Thus, notwithstanding the description in the certificate of outcome as an “order”, the direction given to the father was not a judgment or order within the meaning of s 22. Therefore, it was not capable of being appealed under s 22.
While the father expressed his complaint about the requirement that he provide questions in writing as a separate ground of appeal, his submissions tended to suggest that it is actually a particular of his complaint that the Magistrate’s decision was vitiated by apprehended bias. I will therefore approach the matter on that basis.
The direction that the father was to give written notice of the further questions that he intended to ask Ms Feleppa followed his protracted cross‑examination of her. That cross-examination extended over some 30 pages of transcript. There were numerous objections by counsel for the CEO, most of which were upheld by the Magistrate. The mother also successfully objected on two occasions on the grounds of lack of relevance and time wasting. The Magistrate explained to the father on several occasions that there was limited time available to undertake the cross‑examination of Ms Feleppa and that he should focus his questions on issues relevant to the decision that the Magistrate was being called upon to make. The Magistrate sought several times to assist the father to focus his questions but with little apparent success. The Magistrate found it necessary to rule on several occasions that he would not permit further questions on particular topics on the grounds of relevance or because the witness had already responded.
Given that background, and as Ms Feleppa’s availability was limited due to the pending birth of her child combined with COVID restrictions, I consider that it was well within the reasonable exercise of the Magistrate’s discretion in the management of the trial process to require the father to identify the questions that he intended to pursue with her when he resumed cross-examination. Optimistically, that exercise might have assisted the father to focus on the relevant issues. If not, it should have assisted the Magistrate to identify and exclude irrelevant questions and topics. The father did not comply with the direction to give written notice of his proposed questions and the cross-examination of Ms Feleppa was not resumed. However, the mother did cross examine Ms Feleppa when the trial resumed.
In my firm view, an independent lay observer who had read the transcript of the father’s cross‑examination of Ms Feleppa, and who was aware of the overall circumstances of the case, would not conclude that the decision to require further questions to be the subject of written notice gave rise to a reasonable apprehension of bias. Accordingly, I do not consider that ground 3 supports the complaint of apprehended bias. If, contrary to my conclusion, ground 3 does amount to a valid ground of appeal in its own right, I would dismiss that ground.
Ground 4
I consider that the reference in ground 4 to “overlooked foundational ground” suffers from the same defect as ground 3. In other words, for the reasons I have already stated, I do not consider that ground 4 is a valid ground of appeal for the purposes of s 22 of the Youth Court Act. As with ground 3, I will approach this matter on the basis that it provides a further particular of the contention that the Magistrate’s decision ought to be set aside as there was a reasonable apprehension of bias.
The reference by the father to the “foundational ground” arises from the observation made by the Magistrate prior to his Honour directing the father that he was to provide written notice of the questions that he intended to ask Ms Feleppa upon the resumption of cross-examination that he had laid a foundation for a submission that she and the Department were wrong in their conclusion about the need for the guardianship order. The effect of the Magistrate’s remarks was that the father had achieved what was necessary to advance his case against the making of the order sought by the CEO. The suggestions he had made in cross-examination that documents had been falsified by the Department as part of a conspiracy were not helpful to his case. Those allegations had already been put to Ms Feleppa and rejected in evidence. The point being made by the Magistrate was that those matters did not need to be pursued again in cross‑examination. If he wanted to make submissions on that or other topics already referred to in cross‑examination, he could do so as he had laid a foundation.
I do not consider that ground 4 adds anything to ground 3. I do not consider that it supports the contention of apprehended bias. If, contrary to my conclusion, it does constitute a valid ground of appeal on its own terms, I dismiss this ground as no error has been identified on the part of the Magistrate and the observation made by his Honour could not possibly have affected the outcome of the proceedings.
Ground 5
As previously noted, ground 5 relates to a decision of the Magistrate to admit into evidence a report prepared by Ms Gaoni and Ms Seddon that the child displayed the symptoms of ASD and required substantial support. His Honour indicated that when deciding the weight to be attached to the report he would take into account that the authors had not given oral evidence.
As with grounds 3 and 4, I do not consider that the decision to admit the report into evidence without the authors being made available for cross‑examination is appealable under s 22 of the Youth Court Act. However, I will consider whether the complaint about this issue is a particular that bolsters the complaint of actual bias or apprehended bias.
Section 57 of the Safety Act provides as follows:
Subject to this Act, in any proceedings under this Act the Court—
(a) is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
It is clear from s 57 that the Magistrate had power to admit the report from Ms Gaoni and Ms Seddon into evidence without requiring that they be made available for cross-examination. However, as the Magistrate correctly noted, he was required to take that fact into account when he determined the weight that he should attach to their report.
In deciding whether or not an order should be made under s 53 of the Safety Act placing the child in the guardianship of the CEO until she attained the age of 18 years, it was necessary for the Magistrate to apply the guiding principles set out in Chapter 2 of the Safety Act. Before concluding that it was appropriate to make a long term order, the Magistrate set out detailed findings of fact at [107] to [111] of his reasons. His Honour did not specifically refer in those findings of fact to the ASD diagnosis. However, his Honour did observe at [107] subparagraph 2(xii) that the child “has complex needs requiring therapy and highly attuned care giving”. In part, that was apparently a reference to his Honour’s earlier finding at [100] that the child had recently been diagnosed with ASD and required occupational therapy, speech pathology and psychological support. It was apparently also a reference to the evidence of Dr Jureidini that she is “damaged and requires therapy and remediation”.
Although the Magistrate stated that he would give lesser weight to the report of Ms Gaoni and Ms Seddon than he might have done if they had been made available for cross-examination, his Honour did not advert to that matter in the judgment. However, there is also nothing to suggest that he failed to adhere to his observation about appropriate weight.
In fact, the Magistrate’s reasons do not suggest that the report of Ms Gaoni and Ms Seddon was by any means decisive in his finding that the child had a high need for care. That finding was based upon a considerable body of evidence apart from their report. I refer in particular to the evidence of Dr Jureidini and that of Ms Alison Knight, an infant mental health specialist at the Department of Psychological Medicine and a clinical coordinator at Child Protection Services at the Women’s and Children’s Health Network who had been providing the child and her carer, Ms G, with dyadic therapy from April 2019 to the time of the trial. Significant evidence about the child’s high need for care was also provided by Ms G, who had extensive experience as a carer and was aware of the needs of the child. Those three witnesses had given evidence before the diagnosis of ASD became available. My understanding of the Magistrate’s reasons is that the evidence of the three witnesses I have named was by far the most significant consideration that led to his Honour’s finding that the child had high care needs. In view of their evidence, I think it very likely that his Honour would have come to that conclusion without the ASD diagnosis.
Furthermore, in assessing the weight to be attached to the report of Ms Gaoni and Ms Seddon, it would have been appropriate for the Magistrate to take into account that it was apparent on the face of the report that it had been prepared by two appropriately qualified professionals working in a division of a major public hospital that seemingly specialises in conducting assessments of this type. The assessment was stated to have been made against the criteria published in DSM-5. It was based upon information provided by Ms G in her capacity as carer and by childcare providers and was particularly influenced by the clinical observations that the report writers had themselves made. Their conclusions were explained by reference to each of the relevant DSM-5 criteria.
In all of the circumstances, I am not persuaded that the appellant has demonstrated that the Magistrate wrongly exercised his discretion in deciding to receive the report without requiring the authors to be made available for cross‑examination. I am also not persuaded that the decision to receive the report into evidence affected the outcome of the trial. For those reasons, I am not persuaded that the complaint advanced in ground 5 supports the contentions of actual bias and apprehended bias and nor do I consider that the impugned decision affected the outcome of the trial. As I noted at the outset of this discussion, ground 5 does not relate to a decision that is capable of being the subject of an appeal under s 22 of the Youth Court Act. I dismiss ground 5.
Ground 6
Ground 6 concerns the refusal by the Magistrate following the status conference on 31 July 2020 to allow the father to recall all witnesses who had given evidence during his absence from the trial, allegedly on account of illness, on 20 April 2020, 11 June 2020, 12 June 2020, 16 June 2020 and 29 June 2020. After hearing submissions from the father, the Magistrate noted that he had not applied for an adjournment when he first became unwell and had invited the Court to proceed in his absence. However, on 8 April 2020 the Magistrate had ordered him to provide by 15 April 2020 a list of witnesses that he wished to call and the forensic purpose in doing so.
The Magistrate had explained to the father on 1 July 2020 that although he had not provided the list of witnesses and topics as previously directed, he would give him a further opportunity to do so and hear him on that issue at a status conference to be held on 31 July 2020. He specifically stated to the father that he was concerned about his earlier cross-examination and needed to be satisfied that any further cross-examination would not be about a topic that had already been raised and covered at length. While the father stated that he had some difficulties in preparing written submissions, the Magistrate said that he would accommodate that by allowing him four weeks to prepare submissions.
After considering the written submissions and the oral submissions of the father and the mother made at the status conference, the Magistrate was not satisfied that there was any cogent forensic purpose that required witnesses to be recalled.
For the reasons already given in relation to ground 3, I do not consider that ground 6 constitutes a valid appeal for the purposes of s 22 of the Youth Court Act. If the ground is intended as a particular of the more general complaint that the decision to make a long term guardianship order is vitiated by an apprehension of bias, I reject that contention. I consider that an impartial observer who was informed of the relevant facts would conclude that the circumstances did not give rise to a reasonable apprehension of bias on the part of the Magistrate. His Honour’s decision was plainly within the bounds of his reasonable discretion in the management of a long running and difficult trial involving two unrepresented parties.
I dismiss ground 6.
Admission of further evidence on the appeal
I have referred in detail at [29] to [37] to the further evidence that the father sought to have admitted on the hearing of the appeal. He seeks to rely on this evidence in support of his submission that if he succeeds in the appeal the matter should not be remitted to the Youth Court for rehearing but decided by this Court.
The affidavit and annexures were received de bene esse at the hearing of the appeal. For the several reasons that follow, I decline to admit any of that material into evidence on the appeal.
Before referring to my reasons, I note that the documents add nothing to the father’s core contentions that the Magistrate’s decision was affected by actual bias or a reasonable apprehension of bias (grounds 1 and 2) with the other grounds (3 to 6) referred to in his notice of appeal being best regarded as particulars of those allegations. The father’s action in communicating the allegations of bias to the Youth Court Judge did not add to their weight. However, that is not the purpose of the proposed tender, so I say nothing more about that.
My first reason for declining to admit the material into evidence is that the father only seeks that it be admitted in support of his submission that if he succeeds in the appeal the matter should not be remitted to the Youth Court for rehearing. As I have found that the appeal should be dismissed on all grounds, that purpose becomes irrelevant and thus the additional material also becomes irrelevant. Nevertheless, in case I am mistaken in that conclusion, I will set out the other reasons why I consider that the material should not be admitted into evidence on the appeal.
Before addressing those additional reasons, I note that the considerations ordinarily taken into account when determining whether further evidence should be received on an appeal are not relevant. I refer here to whether the evidence was available, or could have been obtained with reasonable diligence, for use at the trial, whether the evidence could have had an important influence on the result of the trial, whether the evidence is likely to be controversial or contested and the public interest in the finality of litigation.[17] Those considerations are only relevant to evidence that might have been received at the trial but for some reason or another was not received. The present circumstances are quite different in that the proposed evidence relates to events occurring in relation to the administration of the Court while the trial proceeded.
[17] Sunlight Nominees Pty Ltd v Zotti [2017] SASC 176 at [82].
My second reason for declining to admit the material into evidence is that it does not support the father’s contention that the matter should not be remitted to the Youth Court if he succeeds in his appeal. The gravamen of the father’s complaint seems to be that not only was the Magistrate biased against him but so also was the Judge and perhaps other judicial officers attached to the Court. As I put to the father in the course of submissions, if his appeal succeeded a re-trial would almost certainly be required[18] but, if necessary, it could be conducted by appointing a magistrate to the Youth Court on an auxiliary basis.
[18] Baird v Magripilis (1925) 37 CLR 321 at 334 (Starke J) and Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 95 ALJR 128 at [99]-[101] (Edelman J).
Quite apart from that practical solution, the material shows that the father was calling upon the Youth Court Judge to deal with matters that were beyond her Honour’s power. In his letter dated 14 October 2020 the father requested the Judge to remove the Magistrate from the trial. There is no provision in the Youth Court Act which empowers the Judge to alter the constitution of the Court after it has commenced a trial. In that respect the Youth Court Act may be contrasted with s 23(4)(a) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) which specifically empowers the President to alter whom is to constitute that Tribunal for the purpose of dealing with a matter and further provides that any evidence and record of proceedings prior to that alteration may be taken into account in the resumed proceedings.[19] In the absence of such a provision in the Youth Court Act, the Judge had no power to adopt the course sought by the father. Moreover, for the reasons I have already given in relation to the substantive appeal, there was no reason for her Honour to replace the Magistrate, even if she did have power to do so. Thus, the request made in DT1 could not be met.
[19] During my time as President of SACAT, that power was used on a few occasions to overcome difficulties sometimes caused by unavailability of sessional members.
Three of the documents that the father seeks to place into evidence are notices of interlocutory appeals to the Youth Court against decisions of the Magistrate. Section 22(2)(b)(i) of the Youth Court Act provides that an appeal against an interlocutory judgment given by a magistrate of the Youth Court lies to the Judge of the Court. However, as previously discussed, the appeal must be against a judgment or order.
The notices of appeal identified as DT2 and DT3 purport to appeal against what was said to be an interlocutory decision made by the Magistrate on 25 August 2020. On that occasion the Magistrate rejected an application by the father that he should recuse himself on the grounds of bias due to the ruling made at the status conference on 31 July 2020.
In IOOF Australia Trustees Ltd v SEAS Sapfor Forests Pty Ltd Doyle CJ noted that the authorities are divided as to whether an application for leave to appeal against the refusal of a judge to disqualify themselves on the ground of actual bias or apprehended bias may be pursued during the course of a trial.[20] Doyle CJ did not find it necessary to decide that question.
[20] (1999) 78 SASR 151 at [198]-[209].

In Siewertsz Van Reesema v Police a magistrate had proceeded to hear a matter without objection from any party after previously recusing himself at a preliminary stage. Bleby J applied the analysis of King CJ in Legal Practitioners Complaints Committee and found that the action in proceeding with the hearing did not constitute an interlocutory judgment and nor was there an incidental ruling or even a decision from which it was possible to appeal.[21]
[21] [2009] SASC 8.
Of more direct relevance to the present matter, in Stone v Moore Nicholson J also applied the analysis of King CJ in Legal Practitioners Complaints Committee and held that no appeal lay from a bare refusal of a magistrate to recuse themself.[22] That was because there was no order or decision capable of being the subject of an appeal.
[22] (2015) 122 SASR 54.
That is also the situation in the present case. The decision made by the Magistrate on 25 August 2020 to refuse to disqualify himself from further hearing the matter was not the subject of a judgment or order and was merely an incidental ruling. Thus, the refusal by the Magistrate, which forms the subject of the interlocutory appeals in DT2 and DT3, was not capable of being the subject of an appeal under s 22.
While the father sought to appeal in the notice at DT5 against the refusal by the Magistrate on 22 October 2020 to disqualify himself, no application was made by the mother on that occasion and the father was not present in Court on that day. Clearly, while the notice of appeal specifically stated that the order appealed against was the refusal of the Magistrate to recuse himself, that was a mistake. I infer that the father intended to refer to his more general complaint of bias rather than a specific refusal to recuse on that date. I have already comprehensively dealt with the general complaint of bias.
Any interlocutory appeal on the ground of actual or apprehended bias during the course of the trial needed to be directed against a specific interlocutory order made by the Magistrate. For that reason, the notice of appeal comprising DT5 was not competent.
For these several reasons the Youth Court lacked jurisdiction and power to deal with the documents DT1, DT2, DT3 and DT5 that the father seeks to have admitted into evidence on the appeal. The other material referred to by the father (DT4 and part of DT1) was simply requests for documents. That could not have any relevance to the determination of the appeal.
I decline to admit the father’s affidavit dated 21 June 2021 and any of the five exhibits to that affidavit into evidence on the appeal.
The application under the Guardianship of Infants Act 1940
The father has applied to the Court for an order under s 6 of the 1940 Act granting him immediate custody of the child. He has also sought orders that he be provided with a list of all medical conditions that the child has been diagnosed with while in the custody of the CEO, a list of any medication or treatment that she is receiving and a list of all injuries she has sustained while in the CEO’s custody. He has also sought an order that there be “no referral to a lower court for custody”. The final order sought by the father may be paraphrased as a request that if he has incorrectly stated the statutory provisions in his application, the Court should substitute the correct provisions.
At a directions hearing on 4 June 2021, the father explained that he had made the application under the 1940 Act so as to provide a basis for the Court to make an order placing the child in his custody should his appeal succeed.
The respondent applied for the application under the 1940 Act to be struck out. That application is supported by the separate child representative.
Immediately after the hearing of the appeal, I heard submissions from the respondent and from the separate child representative in support of the application to strike out the application under the 1940 Act. I granted the father time, and later an extension of time, to provide written submissions in response to those submissions.
The respondent’s submissions
The respondent submitted that the father was not a person who was entitled to bring an application under the 1940 Act. Section 3(2) of that Act provides that a person shall not be recognised under that Act as the father of a child born outside marriage unless he is recognised under the provisions of the Family Relationships Act 1975 (SA). While the Youth Court has accepted that he is the father of the child following production of evidence in the form of the result of a DNA test, that does not meet the requirements of the Family Relationships Act.
The second contention advanced by the respondent was that the application under the 1940 Act could not be used as a de facto appeal against a decision made by the Youth Court under the Safety Act. The respondent’s submission was based on BC v The Public Advocate (No 4) where I held that an application for an order in the nature of habeas corpus could not be used to provide a de facto alternative to the review and appeal mechanisms provided in the South Australian Civil and Administrative Tribunal Act 2013 (SA) in relation to administration orders granted under the Guardianship and Administration Act 1993 (SA).[23]
[23] (2019) 133 SASR 587.
The separate child representative submitted that the 1940 Act was no longer operative. The powers conferred under that Act had been referred to the Commonwealth Parliament under s 3(1) of the Commonwealth Powers (Family Law) 1986 (SA). The 1940 Act was not included amongst the matters that were excluded from the referral and thus expressly retained by the State, in respect of the maintenance of children and the custody and guardianship of, and access to, children. The State has retained its jurisdiction and power in respect of children who are in need of care and protection but it has not retained the separate jurisdiction and power conferred by the 1940 Act.
The separate child representative also drew the attention of the Court to s 69ZK of the Family Law Act 1975 (Cth) which has the effect of precluding a court exercising jurisdiction under that Act from making an order in relation to a child who is under the care of the person under a child welfare law, i.e. a State or Territory law dealing with that topic. By virtue of reg 12B and Schedule 5 of the Family Law Regulations 1984 (Cth) the Safety Act has been prescribed as a child welfare law for the purposes of the Family Law Act. That exclusion preserves State care and protection laws but not the 1940 Act.
The respondent expressly refrained from making any submission about the effect of the Commonwealth Powers (Family Law) 1986 (SA) and did not support the submission by the separate child representative.
The father’s submissions
I directed that the father must confine his written submissions to the application to strike out his application under the 1940 Act. Despite that direction, most of the father’s written submissions comprised further submissions in support of his appeal. He was not entitled to make those additional submissions and I do not take them into account. In any event, they add little to what he had previously said.
The father submitted that the application under the 1940 Act should not be struck out as it still appeared amongst the Statutes. In that respect, he pointed to the fact that the Act had been republished in 2016. I note that the 1940 Act was amended in 2016. That would have resulted in the re-publication referred to by the father.
Consideration
The submission by the separate child representative that the 1940 Act is no longer in force due to the referral of powers to the Commonwealth raises interesting and potentially complex questions of constitutional law and statutory interpretation. In the absence of comprehensive submissions from the respondent and from a contravenor, it is not appropriate to decide that issue. Moreover, for the reasons that follow, it is not necessary to do so.
Before indicating my reasons for that conclusion, I observe that the father has applied for custody of the child under the 1940 Act whereas the CEO has been granted guardianship under the Safety Act. The powers of the CEO in respect of a child in her guardianship or custody are set out in s 84 of the Safety Act. Mayo J explained the concept of custody at common law in Wedd v Wedd,[24] in a passage adopted by Gibbs CJ in Fountain v Alexander:[25]
Custody essentially concerns control, and the preservation and care of the child's person, physically, mentally and morally; responsibility for a child in regard to his needs, food, clothing, instruction and the like.
[24] [1948] SASR 104 at 107.
[25] (1982) 150 CLR 615 at 626.
If the father were to succeed in his application under the 1940 Act, for the reasons indicated in the preceding paragraph, a question may arise as to the effect of an order under s 6 of that Act granting him custody of the child upon the Youth Court order placing the child under the guardianship of the CEO until she attains the age of 18 years. There has been an assumption that if the father were to succeed in his application, the order under the 1940 Act would prevail over the order made under the Safety Act and render it entirely inoperative. However, there may be some room for argument that because the concepts of guardianship and custody do not cover identical fields, the order under the Safety Act may still operate in relation to decisions about fundamental issues.[26] That question may be left for another day.
[26] When the term “guardianship” is used in contradistinction to “custody” it means the right to protect the child against third parties and to assert their rights. See Wedd v Wedd at 106-107 and Anthony Dickey, Family Law (Law Book Co, 6^th ed, 2014) at [2.150].
Although the paternity of the father has been recognised by the Youth Court following the results of a DNA test, that recognition does not satisfy any of the four alternative requirements set out in s 7 of the Family Relationships Act. In particular, the Youth Court is not a court of “competent jurisdiction” for the purposes of s 7(c). As he has not been recognised under the Family Relationships Act as the father of the child, s 3(2) of the 1940 Act precludes him from being recognised under that Act as the father for the purposes of that Act.
The father has sought to deal with that issue by filing an interlocutory application in this Court on 9 July 2021 in which he seeks a declaration under s 7(c) of the Family Relationships Act that he is the father of the child. In view of this application, I advised the father that I would not have regard to the argument by the respondent that he was not a person who had a proper interest in the welfare of the child pursuant to s 6(7) of the Family Relationships Act. I also advised that the hearing of the application under the Family Relationships Act would be deferred until his application under the 1940 Act was decided.
I find that the application under the 1940 Act must be struck out for the following reasons. First, the only purpose of the father’s application is to provide a remedy should his appeal be upheld. As the appeal is to be dismissed, the application serves no purpose and must be dismissed.
Secondly, an application under the 1940 Act should not be used solely as a means to avoid the exercise by the Youth Court of its jurisdiction under the Safety Act. In my view, the primary purpose of the 1940 Act is to complement and supplement the parens patriae jurisdiction of the Court rather than to provide an alternative source of jurisdiction over children who may be in need of care and protection.[27] The Youth Court, and its predecessors, have been long established to exercise jurisdiction under the Safety Act, and other legislation dealing with young people. It has developed considerable expertise in proceedings concerning the welfare of children. For that reason, the Youth Court is the appropriate court to decide such matters at first instance. In that respect this matter is analogous to the circumstances that I considered in BC v The Public Advocate (No 4).[28] Accordingly, if the appeal had succeeded the proper course would have been to remit the application for rehearing in the Youth Court before a different magistrate.
[27] See, for example, Asuman [2017] SASC 123.
[28] (2019) 133 SASR 587.
I strike out the application under the 1940 Act.